Divorce at Altitude: A Podcast on Colorado Family Law
Divorce at Altitude: A Podcast on Colorado Family Law
Navigating Legal Custody and Decision-Making for Children in Divorce | Episode 199
In this episode of "Divorce at Altitude," hosts Ryan Kalamaya and Amy Goscha dive into decision-making for children after divorce, offering insights and strategies for parents.
Main Topics:
- Decision-Making vs. Custody: Transition from "custody" to "decision-making" and "parenting time" in Colorado, focusing on legal vs. physical custody.
- Key Decisions: Importance of major decisions in a child's life, including education, healthcare, and extracurriculars, and distinguishing them from everyday choices.
Legal Insights:
- Decision-Making Authority: Exploration of joint vs. sole decision-making, with a focus on the child's best interest and the impact of domestic violence.
- Dispute Resolution: Handling disagreements through parenting coordinators, decision-makers, mediation, and arbitration.
Practical Advice:
- Parenting Plans: Crafting detailed plans that outline decision-making processes and include mechanisms for resolving disputes.
- Cooperative Parenting: Encouraging cooperation and adaptability in co-parenting arrangements for the child’s well-being.
Engage With Us:
Listeners are invited to share feedback, follow us on platforms like Apple Podcasts, Spotify, or YouTube, and reach out for more information through our website or direct contact.
This episode aims to equip parents with the knowledge to make informed decisions post-divorce, emphasizing cooperation, legal understanding, and the child's best interests.
📞 Connect with us:
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• LinkedIn: https://www.linkedin.com/company/kalamaya-goscha/
• Phone: 970.315.2365
• Email: info@kalamaya.law
What is Divorce at Altitude?
Ryan Kalamaya and Amy Goscha provide tips and recommendations on issues related to divorce, separation, and co-parenting in Colorado. Ryan and Amy are the founding partners of an innovative and ambitious law firm, Kalamaya | Goscha, that pushes the boundaries to discover new frontiers in family law, personal injuries, and criminal defense in Colorado.
To subscribe to Divorce at Altitude, click here and select your favorite podcast player. To subscribe to Kalamaya | Goscha's YouTube channel where many of the episodes will be posted as videos, click here. If you have additional questions or would like to speak to one of our attorneys, give us a call at 970-429-5784 or email us at info@kalamaya.law.
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DISCLAIMER: THE COMMENTARY AND OPINIONS ON THIS PODCAST IS FOR ENTERTAINMENT AND INFORMATIONAL PURPOSES AND NOT FOR THE PURPOSE OF PROVIDING LEGAL ADVICE. CONTACT AN ATTORNEY IN YOUR STATE OR AREA TO OBTAIN LEGAL ADVICE ON ANY OF THESE ISSUES.
Hey everyone. I'm Ryan Kalamaya. And I'm Amy Goscha. Welcome to the Divorce at Altittude, a podcast on Colorado family law. Divorce is not easy. It really sucks. Trust me, I know. Besides being an experienced Divorce attorney, I'm also a Divorce client. Whether you or someone considering Divorce or a fellow family law attorney, listen in for weekly tips and insight into topics related to Divorce co-parenting. And separation in Colorado.
Ryan Kalamaya:Welcome back to another episode of Divorce at Altitude. This is Ryan Kalamaya. This week, I'm joined by my co host, Amy Goscha. Amy, how are you doing this morning?
Amy Goscha:I'm good. We are talking about a topic that everyone wants to know about. How are they making decisions about their kids after divorce?
Ryan Kalamaya:Indeed. And so we're just we're talking about decision making. A lot of people, Amy, come to us and they say, I want to. full custody. And when we're talking about decision making, what are, in terms of custody and what people hear what, just to marry those two concepts what are we talking about?
Amy Goscha:Yeah. So in Colorado, we don't really use the term custody. That's an old term even though attorneys sometimes translate it. So in Colorado, it's decision making and then parenting time. So decisions are major decisions for your children, not day to day. And then parenting time is the actual time that you spend with your children.
Ryan Kalamaya:And a lot of people refer to decision making or think in their decision making legal custody. And that is in different or in contrast to physical custody, which is parenting time. So we're really talking about the. Decision making and are these, Amy, what's the difference between, so listeners understand, is this whether the kids should play Nintendo or video games or, what time they brush their teeth, or when we're talking about decision making, what decisions fall under this kind of rubric that we're talking about?
Amy Goscha:Yeah, legal custody decision making, it's major decisions, so it would be choice of school, choice of doctor is the kid playing soccer those types of things, whereas like day to day decisions, kid just woke up, what is he wearing to school, that's just a day to day decision that the parent who has the physical custody or parenting time makes those day to day decisions.
Ryan Kalamaya:Yeah, the major decisions, medical, religion education, and then extracurricular I think that, would you agree, Amy, that the, there can be some major disputes over religion. But generally speaking, I don't really see too many people dispute decisions on religion. Education, there can obviously be a difference between, Whether a child should go to private school, or when parents separate after a divorce, 1 parent lives in 1 school district, the other lives in the other. And obviously, there's incentivized to have the child live or go to the school that they live closest to. The extracurriculars, those tend to be some hotly contested areas of, decisions and we can get into that a little bit. The medical, we saw a, a run of disputes and there's been some kind of case law or legal decisions that have really refined some of the analysis that the court employs on decisions because of the vaccines. With COVID, there were a lot, and people have very differing opinions not very, but they often have this differences of opinions on decisions over vaccines. But before we get into kind of the soul and joint and how we get there, anything else you want to comment on kind of the decisions that we're really talking about?
Amy Goscha:I'm seeing in some courts that they don't like if you include anything related to religion. A lot of judges will take the stance that you have a constitutional right to religion. So I do agree with you. There's not as many disputes, but I think a lot of it is a lot of judges say you have the constitutional right to practice whatever religion that you want. Unless the parties agree, I'm raising my child Catholic. Sometimes you'll see that in a parenting plan.
Ryan Kalamaya:Indeed, and it's not, obviously people can be married and often are married from differing faiths, but there's generally an alignment on parents. But yeah, there's the intermarriage of crouch decision. The either the court of appeals they came out with in terms of religion and how that is analyzed in the context of some decisions. But Amy, let's discuss the different ways that the court can in the initial divorce when we set. The decision making or the court sets the decision making and then we'll discuss later on in the show about how that potentially can be modified, but what are, what is the court and by extension, the parties when they're working together, what are they looking at in terms of the options for decision making?
Amy Goscha:Yeah, so the options that the court has is joint decision making where parties make the decision together or sole decision making. So the court can allocate. Either in all areas, decision making to one parent or can actually break it up and can say, Dad, you're making decisions related to medical. Mom, you're making decisions related to, school. So those are the terms in Colorado that we use in the decisions that the court has when it comes to decision making. And then Ryan, when you're looking at the legal standard what are the factors, what is it called that the court's going to be looking at to determine if they're going to order joint or sole decision making?
Ryan Kalamaya:Yeah, the 1410124, we've talked about that statute. It is a really important statute. It's the best interest of the child. And so we've previously discussed in other episodes the factors under 1410124 in terms of, parenting time. That is often, it's the person, the parent's ability to put the children's needs ahead of their own, the ability for them to cooperate, the history, but there's some special factors that the court is in particular asked to Analyze, and one of them is domestic violence. Domestic violence is really important when it comes to decision making. It also is relevant for parenting time in terms of the exchanges and the logistics over exchanges and the idea and the same, rationale really you can see it with decision making is that if there's this Power dynamic between, if our hypothetical divorce clients, Eric and Melanie Wolfe, if there's domestic violence and it doesn't, the definition of domestic violence, there's obviously physical violence, but there can also be the emotional abuse, the power, the control, the use of money, those sorts of dynamics. And it's more than what we have time for. But domestic violence is really going to come into play when it Decision making if Eric has, a history of controlling Melanie, is it a fair decision making process or is it a optimal, decision making process for their children? If they have joint decision making, because Eric's just going to coerce in essence what he wants in the court is going to be, really tasked with analyzing that dynamic. So that really is going to come into play. The thing I'll just also reference is that the. The evidence or the standard by which the court really looks at the domestic violence and I'll also, sex assault, child abuse, neglect. There is those are also relevant to decision making, but there's a, Different standard in these determinations of decision making compared to a criminal case. In a criminal case, there's beyond a reasonable doubt the court in determining domestic violence is really using a preponderance standard. Even if there was a criminal case or it wasn't charged that's not the end of the story. The kind of other factors that the court and we in turn divorce lawyers really look at is on decision making is first is whether there's credible evidence of the ability of the parents to cooperate and to make decisions jointly. So if there's a, In the past, even though they've argued over finances or there's been, some sort of extramarital affair between Eric and Melanie, if the children, they've largely been in agreement on where the kids go to school or Johnny, their son plays soccer or tackle football, then that. is going to be evidence of the, their ability to cooperate. And then, the second factor is whether the past involvement or pattern of involvement of the parties with the child reflects a systems of system of values, time commitment, and mutual support that would indicate an ability as mutual decision makers to provide a positive and nourishing relationship. So we're going to get into a whether Eric even knows the doctor's name or has gone to parent teacher conferences and has really just even been involved that's going to be somewhat relevant. And then the final is whether an allocation of mutual decision making responsibility on any 1 or number of issues will. promote more frequent and continuing contact between the child and each of the parties. Amy, in response to that any kind of examples or things that you've observed when it comes to that initial allocation of decision making?
Amy Goscha:Yeah, I think that in the initial allocation, I do think the court is really looking at, like what role did each parent play in making decisions, but I think also the court finds that and gives people a little bit of deference that their family is changing. And if they've shown an effort, even during pending litigation, even if it's pre decree to be involved, they, the parent wants to make decisions, want, is cooperative, I think then the argument is mitigated where, oh, I've been the primary parent, I've made all the decisions. So I think You know at least I talked to my clients about if they haven't been as involved just making that effort during the pendency of the action, I think, goes a long way.
Ryan Kalamaya:Yeah, and indeed, in one dynamic that I've observed is that Eric and Melanie they may have had a particular. Arrangement during the marriage where Eric went to work and, he deferred to Melanie on, various, in particular, the kind of medical and the extracurricular because there's, a lot of shuttling kids, during working hours that Eric might not. Have that might not have been convenient and, economically optimal for the parties during the marriage. And they may have had this arrangement, but things are going to change. So now all of a sudden, Eric starts wanting to become more involved. And there's that kind of tension where, you know, they, there's a change and you see a change in financials, but. Then you also see a change in kind of the involvement and, absolutely, Eric is going to want to become more involved on the knowledge, the intricacies of, where the kids go to, for their pediatrician and, the extracurriculars. Sometimes a lot of, like I'm making these stereotypes in terms of, what Eric does and what Melanie does but the law does say that there's no presumption that one parent is going to be better than the other. And so that's, something of note, but absolutely in terms of what the history has shown, but that's not. That's not written in cement what's going to happen going forward.
Amy Goscha:Yeah, and I always tell my clients that, usually the court starts with joint decision making. You like, they want parents to have joint decision making if that's possible because, it's in the best interest of the children usually unless the factors aren't met or there's a lot of conflict. I think a judge, judges also pay attention to conflict and sometimes before willing to like change parenting time, Sometimes courts will look at can I allocate certain areas of decision making, dad can pick extracurricular in the fall and mom can pick extracurricular in the spring, to reduce the conflict.
Ryan Kalamaya:Yeah, and in terms of the extracurriculars, because as I said at the very beginning, there can be these disputes and they can also be driven in part by finances because the parties, they may have these extracurriculars. The other thing too is in private school is the, if there is this decision that was made during the marriage that made sense for them because they were married and They didn't have two house payments. They didn't have, two cell phone bills and all of, those things. And they really, leaned in on that kind of savings that occur when people are married. Private school or, a really expensive hockey team or ice skating or, what I see in the mountains, ski programs that may not be financially feasible down the road or after the divorce. And so then if there's, anyone that is going to have their lifestyle remain constant. After a divorce, it's the court and everyone is going to really focus on the children. And so what then happens is once a party realizes that they really, their lifestyle is really gonna, have to take a hit, they may start questioning whether the ski club veil or, Aspen Valley Ski Club, or, that sort of. Programming or the private school tuition whether it's worth it. And so there can be these kind of disputes and you really look at the history on what has happened during the child's upbringing.
Amy Goscha:Yeah, and to sum it up, I think why extracurriculars create a lot of conflict is. A lot of times it spans both parties parenting time, so that can cause conflict on scheduling, and if there's a financial component, like you're talking about.
Ryan Kalamaya:Indeed. Let's move on to modification of decision making, and then we'll next hit what happens if there are disputes when you have joint decision making or we can talk about some solutions in terms of a parenting coordinator decision maker. But if we're if a party of Erica, Melanie Amy if they go through their divorce and they agree to joint decision making, for example and then later on they get into a dispute over a vaccine or that private school, what are the options for Eric and Melanie and what's the legal kind of standard that the court's going to employ?
Amy Goscha:Yeah, so at that point, and the statute when you read it it's very confusing because part of it talks about best interests and it also says that the court shouldn't change the previous agreement joint decision making unless essentially it finds endangerment. So it's very confusing when you read through the statute, but there has been some case law that, not a ton, but some that is helpful and provides us some guidance in Colorado. So one of the options is that if one party wants to file a motion to modify decision making depending on if it's joint decision making, the court might say I'm going to allocate to one parent to make that decision. For instance, there was a case talking about, I'm giving mom the right to choose the school. We had the recent one, on the COVID vaccine, which you'll probably get into. So the court can make the decision or can give it to a parent to make the decision. But usually the standard in that circumstance is the best interest standard.
Ryan Kalamaya:Yeah, there's been some case law, legal opinions for those that don't understand case law, but about this statute and I we had previous guests talk about decision making and parenting coordinator and intermarriage of crotch. We'll have a reference to that. Our guest was now a judge court of appeals, and she said that. It's a really confusing statute. It is not as clear as mud so to speak. But yeah, I think that there's been some references in some cases about that you maintain the status quo and certainly if there's an endangerment. And an example that courts have, there's, they've written about is if a parent doesn't want a child to be vac vaccinated, that that a parent can, then the parent wanting the vaccine can say, listen, the child's safety is endangered by virtue of their lack of vaccination. Or if someone doesn't believe in doctors or, some kind of extreme example that the court. At that point could say the child is going to be their safety and their wellbeing is going to be endangered, but there are exceptions or there are kind of circumstances. I think it's helpful for people to understand when decision making can be modified. And it could either be that 1 parent has sole decision making and now the other parent wants that sole decision making, or they want to, have it be a joint. But. If the parties agree to the modification, so if Eric says, you know what we're just fighting like cats and dogs this is not good. I'm just going to give you, Melanie, the decision making on education, for example. I think it's pretty rare that I see that, but that certainly is one way. Another example is if a child has switched households or has been integrated into, a family when they previously weren't. We've seen, I, I think that, a common example is a teenage daughter who gets really sideways with her mom. That there's that common story and she says, I want to go live with my dad. Or, vice versa. That. A son who might have more parenting time with his dad, then switches. And that's in particular with the relocation. Certainly I've seen that there could be decision making that goes along with that switch to parenting time and the lock. Contemplates that if there's been a modification in the parenting time order, then, then opens up the issue of decision making the final thing that I will reference or circumstances when if a parent, if they've had joint decision making, for example, Erica, Melanie, but then, Melanie's ended up just making all the decisions and Eric is seemingly just acquiesced and said, that's fine. That's okay. I'm not going to do anything about it. And you established a pattern of involvement or lack of involvement. And, Amy and I, you and I have seen circumstances in which, I think it's stereotypical where the the dad will say, I want equal parenting time and then we'll actually exercise that equal parenting time. The same can be with decision making that some people just really focus on what's in writing and the kind of whole principle, but then when it comes to practice, it doesn't actually occur. Any comments on that?
Amy Goscha:Yeah, I think that happens over the years I've seen it more. It's more common than not where people have their parenting plan, especially if they agree to it. They just yeah. Yeah. Put it away and start living life. And things evolve and change over time and where it gets problematic is if they start not agreeing on things, one party says okay, now I'm going to start, enforcing the parenting plan. So a lot of. Modification cases come to me and I'm sure they come to you sometimes where it's we've done this, but this is not what the parenting plan says. And now one parent wants to enforce it, that's not good for the kids. So we need to modify it.
Ryan Kalamaya:Now let's talk about solutions. I have seen where both parents, they recognize that they should have some say, Eric. He's for the extracurriculars. Mom, has she, she's going to do the bulk of, Melanie is going to be doing a lot of the driving in connection with the extracurriculars, but they don't get along. So they could. One option in terms of solving that is they could agree to a parenting coordinator decision maker. I've seen that in high complex cases where parties will voluntarily agree and what happens as a matter of practice is they'll appoint a neutral third party, a lawyer or some sort of, psychologist or mental health professional is usually what, how those people operate and they will go through and they'll the, Neutral third party will try to get them to work on an agreement. So if they dispute about where, the child should go to school, then they'll try to enter into mediation. And then, if not, if they can't reach an agreement, then that decision maker will then switch their hat and they'll take off their parenting coordinator, mediator hat, and then put on their decision maker hat and they'll make a decision. That. Amy can the court order people to have a PCDM?
Amy Goscha:The court can order people to have a PC, but not a decision maker. A lot of times people will say someone has to make the final decision. Otherwise no decisions are going to get made. And yeah, you're right. If a parent doesn't agree to a decision maker, the court cannot order that.
Ryan Kalamaya:And most, professionals will say I will not do a PCE unless I have the teeth or the ability to be a decision maker. The other thing I'll note is that if there is a dispute between, Eric and Melanie on which school the kid, the child is going to go to They'll almost always be required to go to mediation, but, these disputes can come up at the last minute and there can be some time sensitivity July, August. It's there'll be a dispute on where they go to school. We frequently see that. We'll get into kind of what happens in those circumstances, but the, signing up a child for some sort of medical treatment those sorts of things can be fairly time sensitive. Amy beyond the PCDM, what are the other kind of solutions or options for parents if Eric and Melanie are in dispute over, for example, a school issue?
Amy Goscha:They can always submit it to the court or they can agree to hire an arbitrator, but again it takes time. Like courts don't necessarily. You might not get the decision, in time. But otherwise, you are left with having to file a motion with the court or ask the court to change decision making,
Ryan Kalamaya:which takes, a long time. Yeah. And one of the, there's been just a recent case about whether there used to be some dispute on, could a court. Make, could they act as a tiebreaker? And there was a case in the marriage of Thomas that said, yes, the court can if Eric and Melanie have joint decision making, then the, and they disagree on where the child goes to school or whether, Johnny should play tackle football. Those are the sorts of decisions that they fall within joint decision making and the court can act as a tiebreaker. The, there's been a recent case that just came out that said that it's the best interest standard when there's joint decision makers. So you can file Eric or Melanie could file. A motion, they would likely characterize it as forthwith motion or emergency motion. Judges generally don't like those, but, if you and, if you right now, we're recording this in March, private schools are sending out their acceptance and they're requiring deposits. So that's there, there might. not be as much of a time crunch on, that. And you can file a motion and then, depending on the courts, some judges, Amy, I've seen say, I, I'm not going to get involved. You guys figure this out. And then other judges, they, you we'll get into it. I think that I've heard that judges reserve some time or they know that July and August, there tend to be some time sensitive school disputes and they just understand that some will get into the school rankings and really hear it out. And then others will just say, listen, you have an hour and, I, that's all I can give you. But. The arbitration, do you want to explain a little bit more? Because I do think that is a great solution. I've seen it work really well for listeners that don't understand what is arbitration and how could it be used in connection with a school dispute or some sort of decision making dispute.
Amy Goscha:Yeah, so parties can hire an arbiter and it's usually a former judge or a family law attorney that's been practicing for a long time. And it's essentially binding arbitration where the parties agree that this arbiter can make the decision. You actually can present evidence, schedule the hearing, um, like that you have a lot of flexibility as to what, evidentiary rules apply. So it can get A little bit complicated, but there is a lot of flexibility with it. And the great thing is that you get a decision. You're not waiting for the court or crossing your fingers, hoping that the court is going to make time or is going to then actually get a decision out on time. It's a good option. I use arbitration for school choice, or I have in the past fairly frequently.
Ryan Kalamaya:I've certainly seen that and it worked really well where two parents after a divorce, they moved and then, just circumstances, resulted in one parent moving, across town and they got into a disagreement they went to an arbiter and they agreed to binding arbitration. And, They both went on their own. They didn't have attorneys. They submitted Google maps and showed how long it would take to drive. And they did the rankings and, the standardized test scores. And they didn't, it was, the rules of evidence were relaxed, but the. Kind of point was that they just wanted to get the right result. And, they both cared for their kids. And really, they also needed to have a decision quickly because they needed to make decisions on where to enroll their children. And, they did cost them some money, but they agreed to go on their own. And they got a decision, a couple days later, it was a very thoughtful, they took into consideration both parties interests. And I have seen that where, people, they may disagree on the, what should happen, but they agree that it should happen quickly or that they need to get some guidance. And whether it be mediation, arbitration, and we've. Had, an episode with Mike DiMona talking about the pros and cons of mediation arbitration. That is something, or they just say, listen, we're not, no matter how much you try to convince us we're not going to make an agreement here. We just need someone to, make that decision. So I have seen people successfully go to to arbitration on those decision that, that are in dispute.
Amy Goscha:Yeah, I think the last thing I would say before we bring this to conclusion is the one thing you have to think about is when you file a motion to modify decision making, there is a requirement that. You can't file it again for two years if you're asking to go from joint to sole. And what that means is if you file the motion, you say, I want, we have joint decision making. This isn't working. I want sole decision making in this area. And then if the court doesn't allow you to have that, then you have to wait two years to file that type of a motion again, from when you initially filed it.
Ryan Kalamaya:Yeah, and the final point that I'll make is that there's the judicial parenting plan, and it will have fill in the blank for education extracurriculars on decision making in at least the parenting plans that, our template, Amy, and the templates that at least I see with other. Attorneys is they will provide specific kind of processes on, for example, extracurriculars. So that Eric will not the parties agree to have joint decision making and then they agree that they won't sign a child up without. The consent of the other or discuss it with them, and they'll have a dispute mechanism in there where, one thing example is if Johnny plays soccer, they, Eric and Melanie can agree that. That Johnny is going to play, for Boulder United or whatever, soccer program, but then, there's that general agreement that soccer is in Johnny's best interest. But what happens if Johnny, his team wants to go to Phoenix for a tournament or, some sort of, sleepaway camp during the summer. Eric may say, this is really important to me and that I want to give this opportunity to Johnny and Melanie may say, that's great, I can't afford to pay for that because it does, you get into the kind of cost sharing of that particular, activity or the same thing with, school where Eric may say, I want Johnny to go to this, she, Tony, private school. And Melanie could say. I can't afford that. And so there can be an agreement that they agree to that particular decision and, that one parent will take sole responsibility or they'll have, some sort of arrangement on the costs. And usually, that there will be some sort of process in the parenting plan on how they make those decisions and also will memorialize. What the current, what the prior decisions were. So for example, they're gonna continue to go see their same dentist or same healthcare provider, or if the ch, if the kids are in therapy, they agree, they'll continue to go see the, that particular therapist. And then moreover, both parties are entitled to. Records that, school records, the therapy records, whatever it is. And there'll be a lot more explanation on, those particular issues as opposed to just we agree to joint decision making anything, any thoughts on that to conclude Amy.
Amy Goscha:Yeah, I think just the more detail on the plan, and also I would add it's important to say what documents are agreed to be released, to, for instance, the therapist. Is the Child Custody Expert, CFI, PRE report do the parties agree that should be given to the child's, therapist so to make sure that Okay. There's agreements or direction in the plan as to what gets released, what information gets released to the therapist and how.
Ryan Kalamaya:Indeed. Hopefully that gives it an overview on a really important topic. Amy, I know that when Eric or Melanie, when they come to see me for an initial consultation and they have children, they, they want to know, the, What, how courts and how things work with parenting and decisions are, some of the most important, issues relating to parenting. We could go on and on, but hopefully that gives an overview on a really important topic. And again, thanks for joining us on Divorce at Altitude. hey everyone. This is Ryan again. Thank you for joining us on Divorce at Altittude. If you found our tips, insight, or discussion helpful, please tell a friend about this podcast. For show notes, additional resources or links mentioned on today's episode, visit Divorce at Altittude dot com. Follow us on Apple Podcasts, Spotify, or wherever you listen in. Many of our episodes are also posted on YouTube. You can also find Amy and. Law or 9 7 0 3 1 5 2 3 6 5. That's aaa.