Custody Term ‘Primary Parent’ (Colorado)


Courts must decide who the “primary care parent” is, or the parent that has the majority of “overnights” with the children. In its infinite wisdom, the Legislature has come up with a rather convoluted phrase in the new parental responsibilities statute. Lawyers and judges now refer to “the parent with whom the children reside the majority of the time”. This decision may have important legal consequences. The courts use overnights as a somewhat crude way to determine who provides more of the children’s care. It is not an entirely accurate way of describing this division, but it is the way the Legislature has chosen to address the issue. Note that which parent makes more money is not an issue in determining the primary care parent. Courts assume that differences in income will be made up by child support. What is important to the courts is which parent actually spends more time with the children, and specifically, more overnights.

Many parents assume there is a gender bias in the courts favoring mothers in issues of allocating parental responsibility. While there is bias in society, perhaps even in the minds of some judges, the law seeks a level playing field when allocating parental responsibilities between parents. Judges do favor consistencyin addressing parenting issues, i.e., judges favor continuing an existing division of parental responsibilities, unless there is an apparent need for change. One result is that mothers may be given a larger allocation of parental responsibilities, or may be determined to be the primary care parent, more often than are fathers. This is not usually the result of bias. Rather, many parents divide parenting responsibilities early in their marriages and continue those divisions throughout the marriage. Most likely due to societal pressures and traditional divisions of labor, mothers often tend to assume more parental responsibilities than do fathers. Of course, there are plenty of exceptions to this pattern. The result, however, is that when a divorce arises, a judge, in an attempt to provide consistency for the children, may order a continuation of the pre-divorce practices the couple had assumed. Thus, the issue of who will be the primary care parent may not turn on bias, rather, it will likely turn on consistency.

Which parent is the “primary care parent” can be important in many divorce related issues, such as how easily a parent may be allowed to leave the state with the children, or “removal”. These issues can become fairly complex. To determine how these issues are important in a particular divorce or post-decree dispute, the parties should consult a lawyer for an evaluation and opinion regarding their particular circumstances.


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  1. #1 by fatherhoodafterdivorce on October 3, 2011 - 10:17 pm


    Many states award “custody” of children to parents. Sometimes the court will label a parent the “primary parent” as an indication of which parent spends the most time with the child. In 1998, Colorado took the radical step of ending the practice of giving parents “custody” of their children. Custody implies that parents “own” the children. The term “custodial parent” or “primary parent” indicated that one parent had a greater interest in the children than the other. Custodial parents were given the responsibility of making all decisions, often leaving the non-custodial parent feeling like a visitor in the children’s lives.

    In contrast, since 1998, the courts in Colorado have allocated parenting time and decision making between the parents. This approach recognizes that children need both parents and both parents have value in their child’s life. The fact that a marriage ends does not change the fact that a child has two parents who are important to the child. The process that the court uses to determine the amount of time that the child spends with each parent or which parent makes decisions is based on the best interest of the child. Parents will spend time with their children unless the court finds that parenting time would endanger the child’s physical health or significantly impair the child’s emotional development. In determining amount of parenting time for each parent, the court looks at the wishes of the parents and children. Children’s wishes are considered if they are old enough to make reasonable decisions. The courts will consider why the child’s wants to live with one parent or the other. There is no age at which the child has the power to choose where he or she wants to live.

    The court also considers the child’s ties to the home, school and community. The physical and mental health of all the individuals involved is another issue that the court must consider. The disability of a parent can’t be the only reason to restrict or deny time with the child. The court must consider the parent’s ability to encourage the child to develop a good relationship with the other parent as well as the history of the relationship between the parent and the child.

    If there has been a history of domestic abuse, child abuse or neglect, the court must also take that into account. The court will also consider whether a parent has a history of placing the needs of the child ahead of his or her own.

    After the court considers these factors, the court will allocate the child’s time between the parents. More and more, both parents spend some time each week with the child. This may mean daytime visits if the child is young. It could also mean that one parent has the child during the week and the other parent has the child on the weekends. Sometimes the child spends one week in one house hold and then switches for the next week. If the parents live far away from each other, one parent may have the child during the school year and the other have the child for the school breaks. Parenting time schedules are often creative and are always geared to the needs of the children.

    The court allocates decision making for the child as well. The court considers the same sorts of facts in dividing the decision making as it uses to determine parenting time. It also considers how parents made decisions during the marriage and whether there has been a history of violence between the parents. Sometimes one parent makes all the decisions but keeps the other parent informed of the decisions. Other times, one parent will make all of the decisions about medical issues and while the other parent makes decisions about education and religion. The parents may share the decision making about extra curricular activities.

    In years past, if a parent had custody of a child, they had a predictable package of rights and responsibilities. Under the new statute, courts and parents are forced to consider the needs of the children before making orders concerning the future of the child and family. This way, the court’s orders are tailored to each child and each family’s situation. In considering what is best for the child, the whole family will benefit.

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