Colorado Custody and Visitation Law
Courts typically will not consider a parent’s sexual orientation or gender identity in custody and visitation determinations unless it is shown to adversely affect or harm the children. Courts will allow a former same-sex partner (with no legal or biological relationship to the children) to petition for parental responsibilities.
Custody and Visitation for Gay, Lesbian and Bisexual Parents
Colorado courts typically will not consider a parent’s sexual orientation in custody and visitation determinations unless it is shown to adversely affect or harm the children.
Colorado law states: “The factors that a court should look at when determining the best interests of the child when making custody and visitation decisions include: (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; (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) Whether one of the parties has been a perpetrator of child abuse or neglect … which factor shall be supported by credible evidence; (X) Whether one of the parties has been a perpetrator of spouse abuse, … which factor shall be supported by credible evidence; (XI) The ability of each party to place the needs of the child ahead of his or her own needs.”
The law also outlines what circumstances warrant a court making a change in the original custody. Neither a parent’s sexual orientation nor gender identity is grounds for a change.
In one 2001 case, In the Marriage of Dorworth, the father identified as bisexual and was a member of a church “which has a congregation with a gay orientation.” At trial, the court ruled that he could not have overnight guests or take his daughter to his church when he was exercising his parenting time with her. On appeal, the Colorado Court of Appeals reversed this decision. The appeals court affirmed that “a court should not restrict a parent’s parenting time rights unless it finds that the parenting time would endanger the child’s physical health or significantly impair the child’s emotional development.”
Custody and Visitation for Transgender Parents
Colorado courts typically do not consider a parent’s gender identity or expression in making custody and visitation decisions.
In one 1973 case, Christian v. Randall, the former husband petitioned to get custody of his four children. His former wife, who was transitioning to a male, was granted custody after their divorce. The trial court granted the petition. The Colorado Court of Appeals reversed this decision, stating that there was no evidence to support the trial court’s decision that it would be in the best interest of the children to transfer custody. The appellate court reaffirmed the longstanding principle in Colorado jurisprudence that the “court shall not consider conduct of a proposed custodian that does not affect his relationship with the child.”
Custody and Visitation for Same-Sex Co-Parents
Colorado courts will allow a former same-sex partner (with no legal or biological relationship to the children) to petition for “parental responsibilities.”
Colorado law allows an individual (non-parent) to petition for parental responsibilities when he or she has had physical care of the child for at least six months.
In a 2004 case, In the Interest of E.L.M.C., the Colorado Court of Appeals found that granting a non-adoptive same-sex co-parent joint parental responsibilities, defined to include “parenting time” and “decision-making responsibility,” was essential to prevent emotional harm to the child. In this case, the child had been adopted by Clark who was in a committed relationship with Mcleod. When the relationship ended, Clark terminated McLeod’s parenting time. Mcleod petitioned for equal parenting time. The court found that McLeod qualified as a “psychological parent.” The court held that preventing emotional harm to the child was a compelling state interest that justified the state’s interference with Clark’s right to make all decisions concerning the child’s care.
Citations: COLO. REV. STAT. §14-10-124; COLO. REV. STAT. §14-10-131; In the Marriage of Dorworth, 33 P.3d 1260 (Colo. Ct. App. 2001); Christian v. Randall, 516 P.2d 132 (Colo. Ct. App. 1973). COLO. REV. STAT. §14-10-123; In the Interest of E.L.M.C., 100 P.3d 546 (Colo.Ct. App. 2004), cert denied, 2004 Colo. LEXIS 851 (Colo. 2004).
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Last Updated: 10/18/2005