Colorado Child Custody Agreement
Colorado writes a deference rule for separation agreements and then takes the children's terms back out of it.
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Introduction
Colorado is the state that writes a deference rule and then excludes children from it. Under C.R.S. 14-10-112(2) the terms of a separation agreement are binding upon the court unless it finds the agreement unconscionable, but that subsection expressly excepts terms providing for the allocation of parental responsibilities, support, and parenting time of children. Those terms get no deference at all, and the court reviews them independently against the best interests of the child under 14-10-124(1.5) as though the parents had not agreed. Section 14-10-124(7) spells out the practical consequence: a court that does not approve a submitted parenting plan has to formulate one of its own. Colorado also allocates parental responsibilities rather than awarding custody, splitting them into parenting time and decision-making responsibility. And 14-10-112(6) closes the last door, barring parents from agreeing that decision-making or parenting time will not be open to modification later.
Key Things to Know
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Colorado carves your parenting terms out of the rule that would otherwise protect them. C.R.S. 14-10-112(2) makes separation agreement terms binding upon the court unless it finds the agreement unconscionable, except terms providing for the allocation of parental responsibilities, support, and parenting time of children. The property and maintenance bargain is protected up to unconscionability; the parenting bargain is protected by nothing, and the court applies the ordinary best interests test under 14-10-124(1.5) instead.
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The court can decline your plan and write its own. Under 14-10-124(7) both parties may submit a parenting plan for the court's approval, and if none is submitted, or if the court does not approve the one that was, the court on its own motion shall formulate a parenting plan. So submission is optional in Colorado but a plan is not: one exists at the end of the case either way.
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You cannot agree that the arrangement is final. C.R.S. 14-10-112(6) bars the parties from contracting out of future modification of decision-making responsibility or parenting time. Even a plan the court has approved and entered stays open to a later modification request, and a clause saying otherwise does not hold.
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Colorado renamed the vocabulary without changing the underlying law. C.R.S. 14-10-103(3) changed visitation to parenting time on and after July 1, 1993, and 14-10-103(4) changed custody and related terms such as custodial and custodian to parental responsibilities on and after February 1, 1999, and both subsections say the general assembly did not intend to modify the meaning of custody or alter a custodial parent's legal rights. The word custody still appears in article 10 where it is needed, mostly for pre-1999 decrees and other bodies of law, and 14-10-131.7 tells any other state or federal statute that needs a custody designation to read the parenting plan instead.
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The plan contents in the statute are a menu, not a checklist. C.R.S. 14-10-124(7)(a) to (f) says a parenting plan may include, but is not limited to, the type of decision-making awarded, a practical parenting time schedule covering holidays and school vacations, an exchange procedure with locations and who transports, a procedure for the parents to communicate about the child, a procedure for a parent to communicate with the child outside that parent's time, and any other orders in the child's best interests. Where parenting time issues are contested, the statute does impose a standard: the plan must be as specific as possible to clearly address the needs of the family and the current and future needs of the aging child.
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Once the terms go into the decree they stop being a contract. C.R.S. 14-10-112(4)(a) provides that the parties shall be ordered to perform the terms set out in the decree, and 14-10-112(5) provides that those terms may be enforced by all remedies available for the enforcement of a judgment, including contempt, but are no longer enforceable as contract terms.
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Domestic violence produces a bar on shared decision-making, not on contact. C.R.S. 14-10-124(4)(a) makes the court address abuse and domestic violence before it reaches the best interest factors, and on a preponderance finding of child abuse or neglect mutual decision-making is not in the child's best interests over the other party's objection, with no rebuttal available. On a preponderance finding of domestic violence the same bar applies unless the court finds credible evidence that the parties can make decisions cooperatively in a manner that is safe for the abused party and the child. C.R.S. 14-10-124(1.3) also defines coercive control and lists qualifying behaviors, so the screen reaches conduct that is not physical.
Key decisions before you file
Before you file a Child Custody Agreement in Colorado, a few decisions shape the document: which option to choose and what each one means. The Child Custody Agreement guide walks through them.
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Colorado Requirements for Child Custody Agreement
Separation agreement terms bind the court unless it finds them unconscionable, except terms allocating parental responsibilities, support, and parenting time of children. The document should not describe the parenting terms as binding on the court.
The parties may not contract out of future modification of decision-making responsibility or parenting time. Any clause purporting to make the arrangement permanent should be removed or expressly disclaimed.
Terms set out in the decree are performed under court order and are enforceable by all remedies available for the enforcement of a judgment, including contempt, but are no longer enforceable as contract terms.
Colorado allocates parental responsibilities, comprising parenting time and decision-making responsibility, in place of custody and visitation. The document should use those terms while noting that the change of label was not intended to change the underlying meaning.
The statute lists items a plan may include: type of decision-making, a practical schedule with holidays and school vacations, exchange procedure and transportation, parent to parent communication, parent to child communication outside parenting time, and other orders in the child's best interests. The list is permissive, not a required checklist.
If no parenting plan is submitted, or the court does not approve the plan submitted, the court on its own motion shall formulate a parenting plan. Submission is optional but an approved plan is the only way the parents control the drafting.
The court allocates parental responsibilities in accordance with the best interests of the child, giving paramount consideration to the child's safety, using ten parenting time factors and three decision-making factors, and must make findings on the record in a contested final orders hearing.
A parent intending to relocate to a residence that substantially changes the child's geographical ties to the other parent must give written notice as soon as practicable, stating the intent, the intended location, the reason, and a proposed revised parenting time plan. There is no fixed notice period and no mileage threshold.
The court considers four abuse and domestic violence factors before reaching the general best interest factors, and a preponderance finding bars mutual decision-making over the other party's objection, absolutely for child abuse or neglect and subject to a safety finding for domestic violence. Coercive control is separately defined.
Where another state or federal statute requires a designation or determination of custody, the parenting plan in the court's order identifies each party's responsibilities. A Colorado plan should be drafted so it can serve that function.
Frequently Asked Questions
Not for the parenting terms. C.R.S. 14-10-112(2) makes the terms of a separation agreement binding upon the court unless the court finds the agreement unconscionable, but it excepts terms providing for the allocation of parental responsibilities, support, and parenting time of children. Those terms are reviewed independently against the best interests of the child under 14-10-124(1.5), so the court owes an agreed parenting arrangement nothing. Parents can still put parenting terms in the agreement and the court can still adopt them, but the fact of agreement is not itself a reason for the court to do so.
Yes. A parenting arrangement is not binding until a court approves it and the terms go into the decree. Once they do, C.R.S. 14-10-112(4)(a) provides that the parties shall be ordered to perform them, and 14-10-112(5) provides that the terms may be enforced by all remedies available for the enforcement of a judgment, including contempt, but are no longer enforceable as contract terms. Approval is what gives the arrangement teeth.
Yes, and the statute says what happens next. C.R.S. 14-10-124(7) contemplates the court not approving a submitted parenting plan, and in that situation, or where no plan was submitted at all, the court on its own motion shall formulate a parenting plan. The court is not limited to sending the paperwork back; it can write the plan itself.
No. C.R.S. 14-10-112(6) bars the parties from contracting out of future modification of decision-making responsibility or parenting time. A clause saying the arrangement is permanent, or that neither parent will ask for a change, does not bind either parent or the court. Plan on the arrangement being revisitable and draft the dispute procedure with that in mind.
Because the legislature relabeled the terms, and it said in the statute that it was only relabeling them. C.R.S. 14-10-103(4) changed custody and related terms such as custodial and custodian to parental responsibilities on and after February 1, 1999, and 14-10-103(3) changed visitation to parenting time on and after July 1, 1993. Both subsections add that the general assembly did not intend to modify the meaning of custody or alter the legal rights of a custodial parent. The word has not disappeared from Colorado law either: article 10 still uses it, mainly for decrees entered before 1999 and for other bodies of law, and 14-10-131.7 directs any other state or federal statute that requires a custody designation to look to the parenting plan.
Submitting one is optional. C.R.S. 14-10-124(7) says both parties may submit a parenting plan or plans for the court's approval, which is permissive language. The outcome is not optional, though, because the same subsection requires the court to formulate a plan on its own motion when none is submitted. Filing your own is how the parents keep the drafting in their hands.
C.R.S. 14-10-124(7) lists items a plan may include but is not limited to: the type of decision-making awarded, a practical parenting time schedule including holidays and school vacations, a procedure for exchanges covering the location and who is responsible for transportation, a procedure for the parents to communicate with each other about the child including method and frequency, a procedure for a parent to communicate with the child outside that parent's parenting time, and any other orders in the child's best interests. Where parenting time is contested the plan must be as specific as possible to clearly address the needs of the family and the current and future needs of the aging child. Section 14-10-124(4)(e) sets out a further list of safety provisions available in abuse and domestic violence cases.
Abuse and domestic violence come first. C.R.S. 14-10-124(4)(a) sets four factors the court must consider before it reaches the general best interest test. It then allocates parental responsibilities in accordance with the best interests of the child, giving paramount consideration to the child's safety, using the factors in 14-10-124(1.5), which set out a list for parenting time and a shorter list for decision-making. A disability alone is not a basis to deny or restrict parenting time, protective steps taken to shield a child from domestic violence are not counted against a parent under the factor about supporting the child's relationship with the other parent, and in a contested final orders hearing 14-10-124(1.7) requires the court to make findings on the record about the factors it considered.
Colorado sets no number of days and no mileage threshold. Under C.R.S. 14-10-129(1)(a)(II) a parent intending to relocate with the child to a residence that substantially changes the geographical ties between the child and the other parent must give written notice as soon as practicable, and the notice has to state the intent to relocate, the location where that parent intends to reside, the reason for the relocation, and a proposed revised parenting time plan. A dispute is resolved through a modification proceeding that the statute directs be given priority on the court's docket, and 14-10-129(2)(c) adds nine relocation specific considerations on top of the ordinary best interest factors. Because the trigger is qualitative, a Colorado plan is a good place to spell out what the parents will treat as a substantial change in geographical ties.
Colorado imposes a limit rather than weighing it as one factor, and the limit lands on decision-making rather than on contact. On a preponderance finding of child abuse or neglect, C.R.S. 14-10-124(4) makes mutual decision-making not in the child's best interests over the other party's objection, with no rebuttal available. On a preponderance finding of domestic violence the same bar applies unless the court finds credible evidence that the parties can make decisions cooperatively in a manner that is safe for the abused party and the child, and the court may not appoint a parenting coordinator solely to make mutual decision-making workable. Section 14-10-124(1.3) defines coercive control and enumerates qualifying behaviors, 14-10-124(4)(c) provides that leaving the home because of domestic violence is not a factor in determining best interests, and 14-10-124(9) requires the court to state its reasons in writing or on the record when it orders unsupervised parenting time despite information or a child's accusation of abuse or coercive control. This is a situation to raise with a lawyer.