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Custody Challenges for Unmarried Parents

Dawn Gould

NATIONAL DEMOGRAPHICS

OVERALL POPULATION THAT IS UNMARRIED

Per the United States Census Bureau, the total number of unmarried individuals (15 years old and older) has increased overall (unmarried includes never married, widowed, and divorced). In 2010,
the total number of men was 117,686, and of that, 53,161 were unmarried (45%) and the total number of women was 124,361, and of that, 59,165 were unmarried (48%). In 2020, the total number of men was 128,534, and of that, 60,104 were unmarried (47%) and the total number of women was 136,162, and of that, 66,821 were unmarried (49%). In sum, unmarried men have increased from 2010 by 2% and unmarried women have increased from 2010 by 1%.

NUMBER OF CHILDREN LIVING WITH ONLY ONE PARENT

Per the United States Census Bureau, in 2020, about 51.3 million (70%) children lived with two parents, about 7.6 million (11%) children lived with their mother only, about 3.3 million (4.5%) children lived with their father only, and about 3.0 million (4%) lived with neither parent but lived with grandparents or other relatives. Just as the unmarried statistics have increased, these statistics have also increased over the years.

ALLOCUTION OF PARENTAL RESPONSIBILITIES

Allocution of parental responsibilities (“APR”), commonly known as child custody, can be difficult to navigate in the courts and in Colorado there are a large number of APR cases. Per the Colorado Judicial Branch’s Annual Statistical Report, in fiscal year 2010 there were 4,541 APR cases which made up 13% of the State’s total domestic relations cases compared to fiscal year 2020 when there were 5,510 APR cases which made up 18% of the State’s total domestic relations cases. As APR cases increase, it is important to know the process and challenges that you may face in your own case.

Within an APR case, there are two separate issues: parenting time and decision-making responsibilities. Parenting time is who gets to spend time with the child and how often and decision-making is who gets to make decisions about the child’s upbringing (major decisions and daily decisions). Both issues in the case are determined by the court based on the child’s best interests.

COMMENCEMENT OF AN APR CASE

In order to begin an APR case, you would file a Petition for APR, a Case Information Sheet, and a Summons. The Petition generally explains to the court who the parties are and what your position is regarding obtaining an APR order. A Case Information Sheet contains contact information and other personal information for each party and child. A Summons is a notice to appear for the case. Each of these are required to be served on the opposing party.

Also of note is that once an APR case is initiated, there are mandatory temporary injunctions in effect against both parties until the Final Order is entered, the Petition is dismissed, or until further order of the court. The injunctions are: 1) both parties are enjoined from molesting or disturbing the peace of the other party, 2) both parties are restrained from removing the minor child(ren) from the state without consent of all parties or an order of the court modifying the injunction, and 3) both parties are restrained, without at least 14 days advance notification and the written consent of all other parties or an order of the court, from cancelling, modifying, terminating, or allowing to lapse for nonpayment of premiums, any policy of health insurance or life insurance that provides coverage to the minor child(ren) as a beneficiary of a policy.

After service of the initial pleadings, the opposing party may file a Response to your Petition and, if a Response is filed, s/he then has to serve you with it. Both parties are then required to disclose to each other certain financial information and file with the court a Sworn Financial Statement, Certificate of Compliance with Mandatory Financial Disclosures, a Child Support Worksheet, a Parenting Plan (an explanation to the court regarding parenting time and decision-making responsibilities), Support Order, and an Order for APR.

Once all initial pleadings have been filed, an Initial Status Conference (“ISC”) is set. At the ISC, you may ask the court to appoint a legal representative for the child (a person who will ascertain and consider the wishes of the child), a child family investigator (a person who investigates both parties and the child, drafts a report, and makes recommendations to the court regarding the investigation), and/or a parental responsibilities evaluator (a licensed mental health professional who evaluates both parties and the child and provides a more detailed and comprehensive report than a child family investigator). Note that if you are modifying an APR order, there are different types of experts that you may ask the court to appoint. Also at the ISC, the court will provide you with a Case Management Order that lays out a timeline of events for your case, such as, parenting classes and mediation. Lastly, you can request what is called a Temporary Orders Hearing where the court will determine APR and child support obligations temporarily until the Permanent Orders Hearing.

At the Permanent Orders Hearing, the court will enter a permanent order granting/denying APR and child support. Though it is called a Permanent Order, you may file to modify certain provisions of the order in the future if modification was not prohibited by the order.

CHALLENGES OF AN APR CASE

Unlike a dissolution of marriage case that involves children, in an APR case for unmarried couples the court will not resolve issues relating to property division, allocation of debts, nor maintenance (alimony). Another distinction is that in a dissolution of marriage case, children are presumed by law to be the children of the husband. For an unmarried couple, however, there is not a presumption of paternity and if the male in the relationship disputes that he is the father, a paternity proceeding would have to be initiated prior to resolving your APR case.

Other issues that may present challenges to unmarried couples are non-biological parents and/or third parties, like grandparents or stepparents, who assert parental responsibilities. Of note, in Colorado, if a grandparent wants visitation or custody, the grandparent is prohibited from seeking either unless there has previously been an APR order, the child is not living with either parent, or the child’s parent has died and that deceased parent was the grandparent’s child.

CONCLUSION

One of the biggest tips that we can provide you within assisting you and your children in adjusting to a new arrangement is to communicate with your children and the other parent. Communication not only prevents conflicts and unnecessary tension, but it also helps to build a strong co-parenting relationship even though you are no longer in a physical relationship with the other parent. Another tip is to not put your children in the middle of your issues. Resolve your issues away from your children and do not use your children as messengers.

Please know that The Harris Law Firm takes APR cases very seriously and we know that these cases are very personal and can be very emotional for some people. Therefore, we have a highly skilled team that not only cares about your well-being, but also can provide creative solutions that will benefit your situation. Please contact us today for a consult at 303-622-5502.

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If you are in need of a compassionate, skilled, and experienced Colorado family law attorney, The Harris Law Firm can help. If you have a legal question about a domestic relations issue, including divorce and the allocation of parental rights, please complete our contact form below. A member of our legal team will be in touch with you soon to arrange a private consultation with one of our experienced attorneys. Together we can find a resolution.
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