Child Support in Colorado: There are many issues. I think we need to give careful thought to this aspect of of the marriage dissolution statute before proposing changes. I want to make sure we propose meaningful comprehensive changes to the calculation of Child Support Guidelines in the Colorado Uniform Marriage Dissolution Act so that we do not have to revisit this to fill in some gaping holes a year or two from now. I have provided a brief overview of my thinking below. From the online conversation we have had so far, I think many of you may agree on many of the points raised below. I appreciate (and anticipate) your candid feedback, critical analysis, and alternative points of view.
a. Concerning Custody:
In Colorado, custody and parenting time, although inextricably related, are very different. Many states still use terms like physical and legal custody. Colorado once used these terms a well. However, in the current statute, the term custody refers only to decision-making. Thus there really is no such thing as 50/50 custody, 60/40 custody or any other ratio. There is joint custody and there is sole custody, period. There is no legal possibility that says one parent can make 60 percent of the decisions and the other parent can make only 40 per cent of the decisions… or whatever. (When one thinks about it, it doesn’t take long to discern the nonsense of splitting custody into percentages).
b. Concerning Parenting Time:
In Colorado law- in the old days, when the terms legal custody and physical custody were still in use, the time the custodial parent (here, the word custodial is used in the sense of legal custody) had with the children was called physical custody and the time the noncustodial parent (that is the parent that did not have legal custody) had with the children was termed, visitation. (Gag me with a spoon)!
This was updated, thankfully- I think in the early nineties- so that the term Visitation was completely done away with and each parent was considered to have a certain allocation of parenting time. Although this is a huge improvement, there is still much that needs fixing. Still, I think this shift in nomenclature was a good start at reform. I think that none of you would dispute that much more needs to be done.
To my mind, it makes more sense to talk about 50/50 parenting time than it does to talk about 50/50 custody.
It does make sense, as I see it, to promote a presumption for joint custody over sole custody unless one party can present sufficient evidence that shows, beyond a reasonable doubt, that one parent should, by virtue of having committed a criminal act (or history of criminal acts) of child abuse or neglect, have their parental right of custody revoked.
c. Concerning Custody as a Parental Right:
I contend that everyone, and I mean everyone: parties to a marriage dissolution, judges, attorneys, Guardians ad Litem (GALs), custody evaluators, social workers, psychiatrists, forensic and clinical psychologists, marriage and family therapists & counselors, psychotherapists, divorce mediators, family conferencing facilitators, arbitrators, parenting class trainers… and whoever else may be involved (or embroiled or embedded) in marriage dissolution proceedings— e-v-e-r-y-b-o-d-y—- must clearly understand that no judge ever awards custody to a parent… e-v-e-r-! Obviously both parents had full legal custody of their child/children prior to dissolving the marriage in the first place! In order for a judge to decide that one parent shall have sole custody means that that same judge must simultaneously revoke the custody status from the other parent, thus depriving that parent of the custody status they had prior to the beginning the process to dissolve the marriage. I further contend that this revocation of custody is typically performed without just cause, without due process, with insufficient evidence adjudicated at an improper evidentiary standard without the possibility of the matter being heard by a jury and without any possibility to appeal the judicial decision.
I think we need to reiterate statutory language that defines custody and parenting time as parental rights that, in order to terminate them, requires a burden of proof that is beyond a reasonable doubt. It is my view that revocation of custody or termination of any parental right- regardless of the situation- (whether pursuant to marriage dissolution proceedings, child dependency and neglect proceedings, or criminal child abuse proceedings- (physical or sexual)) must be performed only after just cause has been established in a manner that follows due process, governed by the highest evidentiary standard available (proof beyond a reasonable doubt) of having committed the crime of child abuse and that the offending parent demonstrates no evidence of acknowledging or correcting the illegal behavior at issue. I hold that such findings must be based on valid, reliable evidence as decided by a jury (if defendant so requests) with a possibility to appeal the judicial decision. One more time: to deprive one parent of custody is to revoke a parental right of that parent. This in my mind, should be based on evidence that requires the highest burden of proof of all.
Why? To make sure- even in the case of child sexual abuse-, that parental rights can not be terminated frivolously but only based on solid evidence and not merely on frivolous or spurious allegations and misconceived or erroneous assumptions. People need to remember that how right one feels about ones position does not constitute evidence that supports it!
I think that the termination of parental rights is an extremely serious undertaking with grave consequences to the health and well-being of children and families. To make it all the more difficult- particularly in those cases involving intractable perpetrators of child neglect or child physical or sexual abuse- to not remove parental rights when to do so is warranted beyond a reasonable doubt- in all probability will be at least as devastating to the health and well-being of children and families. Judges charged with this serious responsibility need to clearly and convincingly demonstrate acute understanding of what they are doing. Such judges need to demonstrate the highest degree of integrity and discernment in making these critical life-changing decisions about sustaining or revoking child custody and other parental rights.
I am not inclined to agree that the magistrates and judges that preside in domestic relations court typically demonstrate the level of knowledge, expertise (in law and psychology), integrity and discernment necessary to make such important decisions.
Therefore, I hold that no magistrate or judge in domestic relations court should be empowered to revoke the right of child custody or any other parental right from anyone under any circumstance.
I think the consideration of revoking the right of child custody or any other parental right from any person should be considered only through proceedings held in criminal court pursuant to Colorado Revised such statutes as 18-6-401 et. seq or C.R.S. 18-3-405 et. seq.
As I interpret it, existing law in Colorado does not clearly make the connection between parental rights and child custody as I have made it above. In my view, it is critically important to add language to the marriage dissolution statute that clarifies this connection as well as the significance of its consequences.
To require that criminal proceedings be heard only in criminal court and that the People of Colorado have the burden to prove, beyond a reasonable doubt, that a crime has been committed and a persons parental right of custody of his/her child- or any or all parental rights- should be terminated as a result should go a long way toward reducing the frivolous/spurious attempts of one parent to manipulate judges to revoke custody from the other parent based on misleading allegations of unfitness or abuse or other pretexts- perhaps as a ploy to increase the dollar amount of the child support order. This may likely have the side consequence of reducing litigation costs in this arena since the evidentiary standard of beyond a reasonable doubt will improve the chances that a knowledgeable, experienced judge of integrity and discernment is beholden to the unanimous verdict of a jury (and whose actions and decisions are subject to appeal) will eschew hearsay and unsubstantial allegations of criminal child abuse or neglect and admit only valid and reliable evidence in proceedings to consider removing one or all parental rights from a parent.
d. Concerning the assumptions and presumptions upon which Child Support Guidelines are determined:
The economist William Commaner (sp. ?) presented an overview of research findings related to the calculation of child support guidelines at the first annual Divorce Corp Family Law Reform Conference in November 2014. He found that the basic assumptions and presumptions upon which most child support guidelines in most states are based are erroneous. The impact of such error, his research and that of his colleagues found, is that child support guidelines as calculated by state legislatures are much higher than the expenses families actually pay to support their children in practice. (Citation needed).
Dr. Commaner (I think thats his name) went on to present some other basis for determining the actual costs of supporting children that more accurately reflects what people actually spend on their children.
Yet this researcher admitted that even the algorithms his research team worked out are imperfect and do not necessarily reflect the particulars of every case.
What became readily apparent to me is that the child support guidelines should be based on the actual costs parents incur to raise their children. (What a concept)!
In a two house-hold family, obviously some costs are fixed regardless of the number of overnights the respective parents have with the children. The cost of buying or leasing a living unit that can reasonably accommodate the number of children in the household will not change regardless of how many nights a year the children occupy that space.
Like the housing costs exemplified above, costs such as insurance premiums for medical, dental and life insurance as well as costs for extra-curricular activities, special equipment for school sports, supplies, or trips, or tuition for private school, or money saved in a college savings plan, and so on not only represent a few of the significant costs of raising children, they also represent overnight independent (my term) costs. That is, these costs are fixed irregardless of how many nights a year a child or the children reside in one household or the other. Even clothing for the children is an overnight independent cost.
The cost of food for the children may be an overnight dependent cost but what if the children hang out in one household after school, have supper there and go home to sleep at the house of the other parent at night?
Yet child support guidelines are based on the assumption that as the number of overnights increases, so do child support costs increase in direct proportion. Yet for this presumptuous assumption to be true, one could only conclude that all child support costs are overnight dependent costs and no significant proportion of child support costs are overnight independent. Obviously this is not the case!
As one focuses on this line of inquiry more closely and exercises critical discernment in so doing, one can find no other integrous action but to simply dismiss as utterly ridiculous the erroneous assumptions and presumptions that all child support costs are overnight dependent.
Furthermore the configuration and amount of overnight independent and overnight dependent costs will vary from family to family. No one size fits all.
I propose that child support should be based on what both parents (combined) of the two-household family actually spend on supporting their children, balanced for income/ resource disparity. A lower income parent might, for example, happen to have a job that provides better or more affordable health insurance coverage for the children than that of the higher income parent. Although the health-insuring parent may have a lower income, that parent has access to a resource of value that is not as effectively or affordably available to the higher income parent. This can offset what money they need from the higher income parent because they receive a child support resource from their employer that directly benefits the children and is thus a form of child support not derived from income. This is an example of a form of child support I am simply calling a resource.
I do not think it is necessary to draw this line of inquiry concerning income and resources out to its logical (hypothetical) conclusion to make the point. I think anyone reading this would recognize that it is not enough to balance only the relative incomes of two parents where there is an income differential, rather it is more reasonable to balance income and resources (in-kind and otherwise) as well as to distinguish overnight dependent child care costs from overnight independent child care costs.
Therefore, it makes sense to me to jettison the child support guidelines as currently prescribed by statute and to recalculate them based on actual expense accounting- balanced by taking into account considerations such as those exemplified above. Child support monies that are received but not accounted for would need to be returned to the parent who overpaid or by mutual agreement, be placed in a child support savings account for future use.
I anticipate this change will obviate the current all-to-frequent practice of one parent moving to decrease the other parents parenting time in a veiled effort to increase the dollar amount of the monthly child support payment received of the parent deprived of parenting time- a double whammy.
One way two-household families often manage child support expenses is for each parent to deposit money into a joint child checking account (the account owned by the two parents for the benefit of the children). All of the child support expenses- both overnight independent and overnight dependent- are paid for out of this account. Funds both parents have agreed to set aside- say a vacation savings fund and a college tuition savings funds, and so on can be transferred from the child checking account to the child savings account.
This kind of accounting is highly transparent and is often very effective. If one parent gets laid off from work and experiences diminished income for a while, perhaps contributions to the child checking account can be made on that parents behalf by a grand parent, trust fund or other resource if such a resource becomes available. Either that, or the parents may have a conversation about how to reprioritize and streamline spending to reflect the shift in income and resources.
e. Concerning 50/50 parenting time:
When I mediate a divorce, I typically coach the two parents to design and build the best possible two-household family they can for the benefit of their children. Once the parents have consensus on a project design, then we work on identifying the resources to fund the actual building of it.
Part of the design effort is to develop a parenting time calendar. We typically start by identifying all significant days of the year- such as holidays that are important to the family (not everyone celebrates Quanza, for example), birthdays, mothers day, fathers day, and so on. Then we reach consensus on which parent will have the children on those given days. Does one parent have the kids for Xmas eve and the other on Xmas day or are the kids with one parent for both Xmas eve and Xmas day? Often we come up with A years and B years- maybe on even number years, the kids celebrate a certain holiday with one parent and on odd number years they celebrate it with the other. There are all sorts of ways to plan this.
Once the special days are allocated, then we look at allocating days of the month for each of the 12 months according to what works best for the actual living situation of everyone involved in the new, spouseless two-household family. Once the calendar is worked out, we count up the overnights since we have to use those numbers in the current child support guidelines software. It comes out to be whatever it comes out to be. Sometimes it is very close to 50/50- other times not so close. It depends on many factors that are unique to each family- work schedules, proximity of the parents— do they live in the same town? Same state? Same country? How does the proximity and involvement of grandparents factor in? How do summer vacations pan out if one parent is a teacher or takes on a job in a different state?
I know a two-household family where mom and her boyfriend live in one side of a duplex and Dad lives in the other. The two households share the same back yard and the kids come and go between the two households. There are innumerable ways to design a two-household family. Families should be encouraged to work out whatever design works best for them.
The essential point here is not to argue over whether parenting is 50/50 or even requiring that it be 50/50. What makes more realistic sense is to work out the parenting time calendar in order to discover what it turns out to be in whatever ways works best for all involved.
Since, if we follow the proposed scenario suggested above, child support has been worked out according to the actual expenses for overnight independent and overnight dependent child care expenses- balanced to even out any income and resource disparity with funds placed in a jointly owned child expense account rather than in the child support registry or office of the clerk of the court- the relative percentage can fall where it may and have relatively insignificant impact on who pays what to whom since most child care expenses are overnight independent anyway.
Summary:
We have distinguished child custody from parenting time and have considered child custody as a parental right. We have examined some implications of sole custody versus joint custody and have discussed jurisdictional issues, evidentiary standards and other factors with respect to the termination of parental rights in general and revocation of child custody in particular in various contexts, such as in the dissolution of a marriage, in child dependency and neglect proceedings and in criminal child abuse (physical and sexual) proceedings. We have looked at some assumptions and presumptions upon which child support guidelines are based, have seen how some of these are assumptions and presumptions are contravened by valid, reliable research data because, among other things (not discussed above) they do not distinguish overnight independent child care expenses form overnight dependent child care expenses. We have seen how one prevalent outcome of such error is that child support guideline calculations in most states over-estimate the actual costs of child support. We have explored actual cost accounting to determine actual child care expenses in a way that takes into account the particular circumstances and needs of families on a unique basis and balances disparities in income and other resources between the parents. We have looked briefly at utilizing child support checking and savings accounts where such accounts are jointly owned by both parents as a way to increase the effectiveness and transparency of child care expense accounting.
Proposed Next Steps:
1. Discover the extent to which there is consensus on what has been written above, whether we need to further discuss any of these matters, or whether there are any more points to be made with respect to child support, custody, parenting time, burden of proof, or other issues,
2. Reach a working consensus with respect to content,
3. Reach consensus as to how much of our working consensus we think should be included in statue either as legislative declarations or other provisions.
4. Work out the statutory language.
Comments?
~Eric
Lasting Agreements Mediation 