Court’s Special Role in Child Custody Cases

In Child Custody cases, however, the Court has an additional role. There are no jury trials in family law cases and therefore the Judge is the finder of fact as well as the law. Moreover, the judge is expected to determine for him or herself what result he or she believes is in the best interests of the child or children in any particular case.

This is more than the usual fact finding role of the judge in a civil, non-jury trial. The judge must do more than determine what facts are true and what remedy is fair as between the two opposing parties. In Family Law, the judge is bound by law to consider the best interests of the children, who are not parties to the custody case. The best interests of the parents are not at issue, although their constitutional rights or vested parental rights will weigh in. The focus is mainly on the children and the judge must do his or her best to rule in a way that supports the children’s best interests even if it does not correspond or seem fair visa vie the interests of the parents.

You could say that the judge is bound to an advocacy role for the interests of the children in the case. This is one of the reasons that judges rely so heavily on experts such as Child and Family investigators (see former blog entry), Parental Evaluators and other expert witnesses. It is a heavy burden to make permanent decisions about who will be the primary parent, who will have what parenting time and decision making responsibilities. These decisions deeply affect children’s lives. Children that are innocent bystanders to the break up of their parent’s relationship and Colorado judges are bound to do their best to assist in creating the best environment for those children under the circumstances.

Colorado law does give judges some assistance in what factors they should consider in determining what parenting plan will be in the best interests of the children involved. Here are the factors the Court is asked to consider:

  1. Wishes of the child’s parents.
  2. Wishes of the child if they are sufficiently mature to express reasoned and independent preferences as to the parenting time schedule.
  3. The relationship of the child with siblings, parents and any other significant person.
  4. The child’s adjustment to home, school and community.
  5. The mental and physical health of all individuals involved. (Although disability alone cannot be the basis to deny or restrict parenting time).
  6. The ability of the party to encourage love, affection and contact with the other party.
  7. Past relationship of the parties to the child visa vie a system of values, time commitment and support.
  8. The physical proximity of the parties as it relates to the practicality of visitation.
  9. Any history of child abuse and neglect (credible evidence only).
  10. Ability of the parties to place the needs of the child above their own.

The Court is also charged to consider all other relevant factors as well as those listed above in their determination of a parenting plan that is in the best interests of the children.