How to Get Full Custody in Colorado

Many parents wonder if getting sole custody is possible in their Colorado family law case. The first thing they need to know is that, in Colorado, the law no longer uses the term sole custody, but instead uses terms like majority parenting time and sole decision-making. Additionally, Colorado courts favor joint custody, meaning an equal parenting time schedule and joint decision-making parenting plan where both parents play a meaningful role in their children’s upbringing. If you are seeking sole custody, you will need strong evidence that your child’s other parent has abandoned them or is otherwise unfit. Read this article to learn more about gaining full custody in Colorado.

Table of Contents

1. Sole Custody vs. Joint Custody
2. Filing For Full Custody
3. Terminating Parental Rights
4. What the Court Considers Before Granting Sole Custody
5. Can Sole Custody Ever Be Changed to Joint Custody? (Or Vice Versa?)
6. Case Example: Colorado Father Wins Sole Custody
7. Can You Move If You Have Sole Custody?
8. We Can Help You Seek Full Custody

 

Sole Custody vs. Joint Custody

Colorado law recognizes two types of custody: physical custody and legal custody.

Physical custody, or parenting time, refers to living arrangements. If a parent has sole physical custody, this means the child lives with him or her the majority of the time, and the other parent has fewer than 90 instances of overnight parenting time with the child in a year.

Legal custody, or decision-making responsibility, means the right to the care, custody, and control of a child and the duty to provide food, clothing, shelter, ordinary medical care, education, and discipline for a child and, in an emergency, to authorize surgery or other extraordinary care. Colo. Revised Statutes § 14-10-124(1.5)(a),(b)

In other words, a parent with sole decision-making responsibility has the exclusive right to make major decisions for the child regarding education, religious upbringing, extracurricular activities, and medical care. Joint decision-making responsibility occurs when the parents have to share the responsibility of those decisions.

Even under joint custody, one parent may be granted sole physical custody. In this arrangement, the child permanently lives in one parent’s house rather than staying with the other parent for a period of time. However, unlike sole legal custody, the non-custodial parent still retains his or her rights concerning parenting time, decision-making, and other contributions to the child’s well-being.

Filing for Full Custody

You can petition for either full custody (majority parenting time and sole decision-making responsibility) or termination of the other parent’s rights. Either way, you will need to show the court that awarding you full custody is in your child’s best interests. This means that in addition to proving the other parent is unfit, you must also prove that you are a fit parent.

Terminating Parental Rights

Colorado law operates on the assumption that parents have the right to a relationship with their child. Therefore, the courts will only terminate a person’s parental rights when there is clear and convincing evidence that the parent is unable to provide a safe, stable environment for their child.

Here are some examples of grounds for terminating parental rights:

• The parent has abandoned the child.
• The parent is unfit based on a behavioral or mental health disorder that is unlikely to substantially improve.
• The parent has seriously harmed or disfigured the child.
• A sibling has died or been seriously injured due to that parent’s neglect.
• The parent has a pattern of sexually abusing the child.
• The parent has not complied with an appropriate treatment plan implemented by the court. C.R.S. § 19-3-604

Additionally, Colorado courts are required to consider less drastic alternatives before terminating a parent’s rights to their child. So this action should be used only as a last resort.

What the Court Considers Before Granting Sole Custody

As in all child custody cases, you will only be awarded full custody if the court finds that it would be in the best interests of the child. That depends on a number of factors, including:

• the child’s relationship with the parents, siblings and any other people who may be fixtures in their lives.
• how the child has adjusted to his or her home, school, or community
• the mental and physical health of both the child and the parents
• whether the parents have a history of putting the child’s needs first
• the parent’s ability to encourage a relationship with the child’s other parent. C.R.S. § 14-10-124

Can Sole Custody Ever Be Changed to Joint Custody? (Or Vice Versa?)

Colorado courts will not grant a modification that substantially changes the parenting time, as well as the parent with whom the child resides a majority of the time unless it finds that a change in circumstances means the modification is necessary to serve the best interests of the child. C.R.S. § 14-10-129

Typically, the court will not change the allocation of decision-making of responsibilities unless it endangers the child’s physical health or significantly impairs his or her emotional development. In these instances, the court must find that the harm caused by a change of environment is outweighed by the advantage of a change for the child. C.R.S. § 14-10-131(2)(c)29(2)(d)

Case Example: Colorado Father Wins Sole Custody

In a recent Moffat County case, the father filed a motion to substantially change an existing parenting time schedule and to modify the current joint decision-making order to give him sole decision-making responsibility.

Court Takes Abuse Allegations Seriously

A child family investigator (CFI) testified that the children in this case did not feel safe in their mother’s home because she “continuously” isolated and degraded them. Additionally, both children told the CFI that the stepfather hit them with an open hand and had dragged the younger child outside by her hair. In re Marriage of Wenciker, 2022 COA 74, ¶ 27, 519 P.3d 381, 386 

Further, the CFI testified that the mother had pulled the children out of school without first consulting their father. She had intended to homeschool the kids but never followed through with those plans, leading the children to worry they had fallen behind academically.

Taking the CFI’s testimony to heart, the court granted the father sole decision-making responsibility over the children.

Can You Move If You Have Sole Custody?

If the parent with sole residential custody wishes to move out of Colorado with the child, the custodial parent must show the court that there is a sensible reason for the relocation.

Once the parent has demonstrated a good reason, the courts will presume that it is in the child’s best interests to remain with the custodial parent. The burden then shifts to the non-custodial parent to show it would not be in the child’s best interests to relocate. In re Marriage of Garst, 955 P.2d 1056, 1058 (Colo. App. 1998)

We Can Help You Seek Full Custody

If you have legitimate suspicions that your child’s other parent is endangering them, we can help you seek sole custody. Call 303-688-0944 today to begin your case assessment.