Erie, CO asked in Divorce, Family Law and Child Custody for Colorado

Q: How does custody work when your child is only 15 months old and can't voice any kind of personal parental preference?

I am still currently married to my wife and we have a 15 month old daughter that we both love dearly and want the best for, but I am at my breaking point in regards to my relationship with my wife. She is not the woman I married and I fear that staying married to her will not only keep me miserable, but ruin the great quality of life I wish and hope for my daughter to have once she's old enough to see that her parents aren't in a stable relationship. I'm not saying I want to get an immediate divorce and somehow magically win full custody of my daughter. I want my daughter to be raised by a mom and dad who are able to use their energy towards her growth and development, rather than all of that energy going towards trying to keep their cool and not fight with each other in front of their daughter all day everyday.

1 Lawyer Answer
Brock Richard Wood
Brock Richard Wood
  • Divorce Lawyer
  • Denver, CO
  • Licensed in Colorado

A: Hi, James. I am sorry to hear about your unhappiness. Hang in there.

The question you ask is "How does custody work when your child is only 15 months old". The age of the child is a factor that the courts in Colorado consider when allocating "parental responsibilities" (parenting time and decision-making authority for the child) between the two parents.

At the young age of 15 months, a specific questions that the judge in your case will want answered is, "who has been the primary parent of the child since the child was born". Another question the court will want answered is "is the child breastfeeding". A third question the court will ask is, does the parent who was not the primary parent for the child have a residence and a work schedule and childcare available that will allow him/her to care for the child overnight?

The answers to these questions will help the court make a decision about the parenting time of each parent for the child and how the parents will make major decisions for the child.

In my experience, when the child is very young (only 15 months old in your situation), the judges in Colorado tend to want the parties to propose a "phased" parenting plan to the court. In a phased parenting plan, the court will start with most parenting time, including overnights, allocated to the parent who has been the "primary parent" of the child. The court will then order frequent parenting time by the other parent, as much as three or four times per week. This leaves the child primarily in the care of the "primary" parent but ensures that the child gets bonding time with the other parent about every other day.

As the child grows older, a second phase will begin and the other parent will start to get more parenting time and more overnights with the child.

A third and continuing phase is also usually ordered that looks to the future when the second parent will receive 50 percent (or close to 50 percent) of the parenting time with the child.

Phase 1, in my experience, lasts about 6 to 9 months. Phase 2 also lasts about 6 to 9 months. Phase 3 is the final phase and additional court orders will be needed to change what is ordered for Phase 3.

Decision-making power for the child is important. Decision-making power is the right to make major decisions for the child in 4 basic areas: Medical, Religion, Education, and Recreational and Extra-curricular Activities. In my experience, judges in Colorado tend to order "joint" decision-making power, where the power is shared between the parents and a major decision cannot be made without each parent's consent, unless there is some special fact situation that argues in favor of one parent having "sole" decision-making power.

The above is a very high-level outline of the way I have experienced Colorado judges allocating parenting time and decision-making power between the parents when a child is quite young.

Please be aware that, unlike other areas of law, such as criminal law and civil damages cases, judges in domestic relations cases are "courts of equity". A court of equity has the power to "dream up" and order the solution it thinks is in the best interests of the child. You should work with an attorney who has experience creating reasonable and well-thought-out parenting plans to propose to the Court. Colorado judges love to receive a well-thought-out parenting plan proposal from a parent. It shows that the parent takes the issues in the case seriously and is doing the hard work to fashion a situation for the child that is as good as it can be for the child.

I hope your situation works out as best it can for you and for the child. If you contemplate filing the divorce papers, definitely consult with an experienced Colorado family law attorney before doing so. Getting advice and guidance from an attorney can keep you from making costly mistakes right at the beginning of the case that are hard to un-do later on.

Rebecca Pescador agrees with this answer

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