Has Family Law changed over time?

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Yes, absolutely!  And it should and must always change and evolve, in small ways each year, and sometimes in ways that we can hardly imagine ….

  • When an appellate court in Denver enters its decision from an appeal about what may have wrong­fully happened in a legal case before one of the District Courts that govern Colorado’s 64 counties, the law can change,
  • Or when the Colorado Legislature passes a law that modifies an older law, or repeals it and replaces it with something entirely new, the law does change,
  • Or sometimes if there is an appellate decision or new legislative law in another state that impacts upon Colorado, causing our law to change,
  • And when the United States Supreme Court enters a decision that revolutionizes some aspect of Fam­ily Law in all 50 of our United States, Colorado law has changed.

Family Law must evolve, sometimes in attempt to keep up with our ever-changing society and how family members interact, and, yes, sometimes to push us in a new direction that the “powers that be” (our Legislature, and sometimes the Courts) want us to go!

The law of concerning Child Custody is a prime example of these evolutionary changes.

Please refer to the following discussion, if you are interested about the evolution of Family Law and how some of today’s laws came to be.

    • Under English Common Law, which became the basis for the legal system in most of our United States, a child, as well as pretty much everything else, belonged to the husband-father, and, should the parents separate or divorce, the mother would get practically no legal rights to that child.

    • The Feminist Movement began in the early 1800s, and the laws regarding children began to gradually change, until mothers were given preference over fathers in custody cases, under the Tender Years Doctrine, which stated that the wellbeing of “a child of tender years” was best served by being given to the nurturing mother.

    • However, the Tender Years Doctrine resulted in an almost automatic award of custody to the mother, without consideration of what was actually in the child’s best interests.  Colorado Courts began to adopt the Best Interests of the Child Standard, requiring Judges to determine contested custody in a manner that actually served the child’s need and which was not merely based upon sexual prefer­ence in favor of women.

    • By the 1970’s, Colorado Legislature codified this judicial law into a statute, entitled “Best Interests of Child,” which prohibited consideration of sexual preference, so that custody determinations were to be made upon consideration of many different elements or factors that impact upon children’s lives and the parenting they receive.  Father’s Rights were recognized, and attorneys, judges and parents again began to be re-educated to understand that achieving the best parenting possible was the focus, not the gender of who can provide it!

    • The field of Child Psychology first began to develop about the same time, with the clinical studies upon Children of Divorce just being to be per­formed.  These demonstrated the im­portance of stability and predictability for children, their imperative need for attach­ment and bonding, and the many im­portant factors that now must be considered when de­termining what is actually in each individual child’s unique best interests.  Parenting skills and styles have been examined, and many positive changes are now recommended and are becoming the norm.

    • In the 1980’s, Colorado’s Legislature adopted a Joint Custody law, whereby children not only could re­side with each parent, but the parents were required to make major decisions concerning the chil­dren together, in a harmonious manner.  Additionally, the term “visitation” was replaced by a much more expansive concept, “Parenting Time,” which included much more than just being together.

    • Then, in 1999, Colorado became the second State of our Union to adopt the Parental Responsibili­ties Law, by which (a) the term “Custody” was replaced by “Decision-Making”, which could be sole or joint on any or all major issues concerning a child, so that one parent might solely make educational decisions, the other make all major medical decisions, and jointly they would make all other major decisions; and (b) the “factors” or elements that were to be considered in making Parenting Time and Decision-Making determinations were expanded and redefined to reflect what Child Psychologists were finding to be the parenting-skills that are truly important to a child’s well being and develop­ment.

    • Most recently, in 2013, our Colorado Legislature again amended the statute to give greater recognition to the harms that may occur where one party has perpetrated domestic violence or child abuse, and created a new procedure for the Court to ensure that the popular 50/50 Parenting Time and Joint Decision-Making Orders actually did serve the Best Interests of each child.

    • Today, trained Mediators, Parental Responsibilities Evaluators, Child and Family Investigators, Parent­ing Coordinators, Qualified Decision-Makers and the Child’s Legal Representative, may be appointed by the Court, depending upon the needs in a case, each serving certain important roles.  Child Counselors utilize Play Therapy to understand what may be impacting upon pre-verbal chil­dren.  Adults are far more likely to accept individual counseling for them­selves, as well as consulting with Child Counselors.  Substance Abuse and Anger Control Counselors may be utilized. There are any number of educational courses, seminars, books and Internet sites containing loads of information about many of the things you are ex­periencing.  Extensive resources are available to you.  Welcome to your future!

The laws in Colorado regarding not only Allocation of Parental Responsibilities (“custody” & “visita­tion”), but Child Support, Spousal Maintenance (“alimony”), Marital Property Rights, Rights of Third Persons (“custody” and “grandparent visitation”) and every other aspect of Family Law have changed dramatically during the past several generations, as has our society.  Our Colorado Leg­islature and our Courts hold the law as a model for us to aspire to, to regulate our conduct and emotions, and to allow us to anticipate certain consequences of our behavior in these domestic settings.  This revolution in the field of Family and Do­mestic Law is both exiting and far-reaching.  It parallels the rapid evolution of how we in­teract in society.

But there are also disturbing signs on the horizon concerning law, as a whole, and specifi­cally Do­mestic and Family Law.  Our Colorado Court System has been impacted by se­vere budgetary limitations while being faced with a significant increase in the number and complexity of cases.  Some programs have been cutback, hours of operation and staffing have decreased, and Judges and Magistrates have ever more to accom­plish in each case, all while the number and complexity of Domestic Law cases is increasing.  You and your situation are right smack-dab in the middle of all this.

There is also the ten­dency of the Court System to routinely move Self-Represented or pro se litigants through The System as smoothly as possible, without tying up Judge’s or Magistrate’s calendar.  That is good for them, but what about you?  This can result parties not realizing what their rights are, or what is important, or with their failing to inform the Court what is really going on and the Court entering Orders without being aware, all so that the Orders do not effectively resolve those problems and too frequently can­not be effectively modified.

There is no telling where this field of law will be in another 10 years.  But you should agree that it makes sense that, if you learn about and enforce your individual rights, and those of any children involved, then you will be in the forefront of whatever comes your way in the future, which is a good place to be.

However, being confused, worried, angry, bewildered, scared, even an emotional basket case like you never have before in your life, these are all normal responses when we are having serious problems in our relationships with current or ex-spouses, lovers, or significant oth­ers.  We gave “the other” a lot of access to our inner-core, and they do know how to get to us!

So, under the totality of your circumstances, ask yourself whether you can benefit from consulting with an attorney, learning how to avoid the pitfalls and future hardship, and ob­tain closure, move on into your future.  Making this life-transition, getting through these problems, creating a good plan for the children, and feeling that you got a fair-shake under the circumstances, these are good goals.

Choose wisely.  This time may be the best opportunity you have, for yourself, for the chil­dren.

Roy K. Farber exclusively practices
Family & Domestic Law.

If you wish to schedule your Initial Consultation with him, please call 970.245.0065.