Divorce with Kids: How is Visitation Determined? — Part I

Attorneys in divorce

Generally speaking, issues around kids are some of the most complicated and delicate topics that need to get worked out when a couple is divorcing. Like I always say, there is no “one-size-fits-all” solution for every family, but there are certainly guidelines (and sometimes formulas) the Court will follow when determining how things will look post-divorce.

A common question I receive from divorcing parents is, “How will visitation with a non-custodial parent be determined?” And the answer is, there’s no formula for determining this aspect of divorce, and it really depends on several factors:

  • The child’s independence;
  • What the child can handle; and
  • What kind of parent the parent is.

Some parents aren’t fit to spend time with their child(ren) beyond supervised visits. Others will have overnight visits and be able to take the kid(s) on trips. The overwhelming concern for the Court is always this: What is in the child(ren)’s best interest?

Determining the Child’s Best Interest in Divorce

In determining the child(ren)’s best interest, the Court will look at evidence to establish what exactly that may look like for this specific family.

Generally, the evidence will fall into three categories:

  1. The parents will go on the stand and explain what they think is best for the kid(s), and why. Dad may say, “Mom’s trying to keep the kid away from me,” while Mom may say, “He’s an alcoholic and a drug addict and he has anger management issues.” This kind of he said/she said may not suffice as evidence
  2. The parties will bring in collaterals, such as neighbors, friends, teachers, doctors and relatives to give testimony as to the characters of the parents. A neighbor might say, “During the marriage, the father has been very involved with the child,” or maybe a teacher will say, “The father has never shown up for a parent/teacher conference.” All of this is also taken into consideration.
  3. The parties may request a custody evaluation, which is when a professional evaluator takes time to get to know the family and assesses the situation. That person will then make a recommendation to the Court as to what he or she believes is in the best interest of the kid(s).

There are Two Types of Custody Evaluations in Colorado

In Colorado, there are two types of custody evaluations: a CFI, or child and family investigation, and a PRE, or parental responsibilities evaluation.

A CFI is primarily done by an attorney, someone with a masters in social work, etc. These evaluations tend to be relatively superficial because the Supreme Court has mandated that they can cost no more than $2,750.

When you break down what you’re paying for, you quickly realize that not much can be done for $2750: if you consider that the average evaluator probably charges about $200/hour, and then consider that it takes 2-3 hours to write the report, you quickly realize that we’re talking about 10 hours or so of investigation. That will usually entail at least an hour with each parent as well as interviews with the child(ren), and it will usually include an “interactional,” wherein the CFI goes to each party’s house and watches him/her interact with the kid(s).

When you add all these things together, it doesn’t leave much time for talking to collaterals (neighbors, friends, teachers, relatives, etc.) or doing anything else.

The evaluator will then issue a report with recommendations based on his or her findings, and generally the findings will address a variety of questions, including:

  • Can these parties make joint decisions?
  • Are they capable of putting the child’s best interest over their own?

The CFI will also recommend a parenting time schedule that includes a regular schedule (meaning a schedule for the school year) and some sort of vacation schedule (summer vacation and holidays).

The CFI’s recommendations are not binding, but most often, the Court will follow them because they’ve been issued by an experienced person who is objective.

In my next blog post, I’ll talk more about a PRE, or parental responsibilities evaluation. Until then, if you are getting divorced and need to speak with an attorney, call our office at 303-449-1873 to set up a complimentary consultation.

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