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The Best Interests Standard of Review

Colorado District Courts and Magistrates are routinely called upon to resolve a wide range of parenting issues, including to name a few

  • Parenting time
  • Decision-making responsibility
  • Grand-parent visitation
  • Relocation

These various parenting issues as well as others are oftentimes referred to collectively as parental responsibilities.

For many parents who go through the judicial process to resolve disputes, it may feel as if the parents are being required to turn over the future of their families to an unknown "black robe" who knows nothing about them or their children. When viewed from this perspective, the judicial process can become a scary proposition to a parent. To help alleviate some of that fear, parents should take into consideration what courts are actually required to do.

In resolving parenting disputes, a court does not simply flip a coin to determine which parent is "right" or otherwise arbitrarily choose a side. Rather, Colorado law requires a court to focus on the best interests of the child. Although there are innumerable factors which may be considered by a court based upon the specific circumstances of the child and the parents, there are certain factors which a court is required by law to consider in addition to any special circumstances of a particular family. By knowing and understanding these factors, parents are better equipped to handle a judicial proceeding and more importantly, best articulate their position to a court.

The factors which a court must consider are known collectively as the "best interests standard". These factors are set forth in the Colorado governing statutes at Colo. Rev. Stat. §14-10-124.

With regard to parenting time issues, also known as visitation, Colo. Rev. Stat. §14-10-124(1.5)(a) provides:

In determining the best interests of the child for purposes of parenting time, the court shall consider all relevant factors, including:

(I) The wishes of the child's parents as to parenting time;

(II) The wishes of the child if he or she is sufficiently mature to express reasoned and independent preferences as to the parenting time schedule;

(III) The interaction and interrelationship of the child with his or her parents, his or her siblings, and any other person who may significantly affect the child's best interests;

(IV) The child's adjustment to his or her home, school, and community;

(V) The mental and physical health of all individuals involved, except that a disability alone shall not be a basis to deny or restrict parenting time;

(VI) The ability of the parties to encourage the sharing of love, affection, and contact between the child and the other party; except that, if the court determines that a party is acting to protect the child from witnessing domestic violence or from being a victim of child abuse or neglect or domestic violence, the party's protective actions shall not be considered with respect to this factor;

(VII) Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support;

(VIII) The physical proximity of the parties to each other as this relates to the practical considerations of parenting time;

(IX) Repealed by Laws 2013, Ch. 218, § 2, eff. July 1, 2013.

(X) Repealed by Laws 2013, Ch. 218, § 2, eff. July 1, 2013.

(XI) The ability of each party to place the needs of the child ahead of his or her own needs.

With regard to decision-making responsibility, also known as custody, Colo. Rev. Stat. §14-10-124(1.5)(b) provides:

In determining the best interests of the child for purposes of allocating decision-making responsibilities, the court shall consider, in addition to the factors set forth in paragraph (a) of this subsection (1.5), all relevant factors including:

(I) Credible evidence of the ability of the parties to cooperate and to make decisions jointly;

(II) Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support that would indicate an ability as mutual decision makers to provide a positive and nourishing relationship with the child;

(III) Whether an allocation of mutual decision-making responsibility on any one or a number of issues will promote more frequent or continuing contact between the child and each of the parties.

(IV) Repealed by Laws 2013, Ch. 218, § 2, eff. July 1, 2013.

(V) Repealed by Laws 2013, Ch. 218, § 2, eff. July 1, 2013.

In applying the foregoing best interests standard to a particular family's circumstances, parents may need to think in concrete terms, rather than indistinct generalities. Take for example, the factor set forth at Colo. Rev. Stat. §14-10-124(1.5)(a)(VI); i.e., the ability of the parties to encourage the sharing of love, affection, and contact between the child and the other party. If asked, most parents will readily proclaim that they regularly tell their children that the other parent loves them. Such parents see this as a clear example of their ability to encourage the sharing of love and affection. Although that technically may be correct, most courts have heard that same mantra time and time again and are not necessarily impressed. However, parents who take the time to consider that same factor in more concrete terms, often are surprised by the myriad of ways in which day to day they demonstrate their ability to foster and strengthen the relationship between their children and the other parent.

Do your children have photographs of the other parent sitting on their bed-side tables? Do you assist your pre-school children in creating beautiful, hand-made birthday cards for the other parent? Do you assist your toddler in telephoning the other parent for no reason other than the child wants to say "I love you"? Or, do you remind your over-booked teenager to just give the other parent a call to say hello? Do you share with your children stories of the other parent to reinforce your shared family history? When faced with a difficult decision, do you encourage your soon-to-be grown up child to also discuss the matter with the other parent? These concrete acts, and many, many more, are the embodiment of a parent's ability to encourage the sharing of love and affection.