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Family Law Basics: the best interest factors and decision making
Family Law Basics: the best interest factors and decision making

Colorado no longer uses the terminology of “custody” to determine parenting issues.  Along with parenting time, the Court allocates decision-making responsibility to one or both parents.  Decision-making responsibility is generally broken up into a few areas – educational decisions, medical and mental health decisions, religious decisions, and extracurricular decisions.  Parents can certainly add to this list and can include specific areas that will fall under decision making.  Some typical major decisions are when a child can get a job or where a child goes to daycare.

There are essentially two options for decision making – either one parent makes the final decisions for the child (in one area or all areas), or the parties work together on every major decision, known as joint decision-making responsibility.

To determine parenting time, the Court reviews nine factors to determine what is in a child’s best interests.  When it comes to decision making responsibility, the Court applies those same factors plus three more:

  1. Evidence that the parents can cooperate and make decisions together;
  2. Evidence that the parents have historically shared values, time commitment and mutual support to show that the parents can provide a positive relationship with the child; and
  3. Whether joint decision-making responsibilities will promote more contact between the child and each of the parents.

The Court has a balancing act here. Most parents who have come to court with a disagreement about decision making responsibility are not at their best in terms of communication and co-parenting.  However, the Court needs to see beyond that to determine whether there has been positive joint decision making in the past, and whether the parents are likely to be able to work together in their child’s best interests in the future.

In a best-case scenario, the parties can re-adjust to working together, and then joint decision making is appropriate.  But just because it might be easy to agree to work together in the future, if there is a history of controlling behaviors or abuse, be careful.  If you choose joint decision making just because it’s easiest at the time, you may regret it.  Once joint decision making is established, it is very difficult to undo, and in the meantime, you may be opening the door to ongoing conflicts.  Think hard about whether you can work with your ex in the future before signing up for joint decision making.

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