Judges in Colorado custody cases see the same conduct in file after file: a child who arrives at an exchange carrying a message, a child who is debriefed the moment the car door closes, a nine-year-old who can recite the motion to restrict. Parents who do these things rarely think of them as evidence. Judges do. Colorado's best-interests statute gives the court specific reasons to hold that conduct against the parent doing it and to credit the parent who did not.
This article covers what judges notice, the statutory factors that reward a protective parent, how a Colorado court hears from a child without a witness chair, the tools that take the conflict out of a child's daily life, and a trial lawyer's version of how to tell the children.
What Colorado Judges Notice and Punish
The Colorado bench book's own list of parental behavior that judges may address with sanctions in a parenting-time enforcement case reads like a catalog of what not to do: using the children as go-betweens to gather information and carry hostile feelings back; venting hostility toward the other parent during parenting time; bribing or bad-mouthing so the child becomes dissatisfied with the schedule; using exchanges to harass. Add the things judges see in the modern file: showing a child the pleadings or an investigator's report, rehearsing a child before an interview, recording a child's complaints about the other home, and asking a child which parent he wants to live with.
The common thread is the loyalty bind: a child who learns that loving one parent betrays the other stops telling the truth to either. Colorado's statute treats a parent's conduct as irrelevant only when it does not affect the relationship with the child (C.R.S. § 14-10-124(2)); conduct that recruits the child into the fight affects that relationship directly.
A recent Court of Appeals decision shows how closely judges track this. In In re Marriage of Pawelec (2024), the trial court found that the mother had disparaged the father to the child and never acknowledged it or changed. The father had also criticized the mother in front of the child, but he apologized and admitted it was unfair. The court awarded the father primary care, and the appellate court affirmed. Judges notice who does it, and who owns it.
The Factors That Reward the Parent Who Protects the Child
Several of the parenting-time factors in C.R.S. § 14-10-124(1.5)(a) speak directly to this conduct:
- The ability of each party to encourage the sharing of love, affection, and contact between the child and the other party. The statute carves out a parent protecting the child from domestic violence or abuse; it does not carve out a parent who simply dislikes the other.
- The ability of each party to place the needs of the child ahead of his or her own needs. A parent who needs the child to take a side fails this factor in a way judges can see.
- Whether the parents' past pattern of involvement reflects a system of values, time commitment, and mutual support.
- For decision-making, credible evidence of the parties' ability to cooperate and to make decisions jointly. A parent who communicates through the child has, by definition, no such evidence.
Two other provisions matter. C.R.S. § 14-10-123.4 declares that children have the right to be emotionally, mentally, and physically safe in the care of each parent. And C.R.S. § 14-10-129.5 lets a court answer a pattern of this conduct with parenting classes and family counseling at the offending parent's expense, on top of make-up time and fees. A sustained pattern can also support a later motion to modify, covered separately on this blog.
How the Court Hears From a Child Without a Witness Chair
Parents sometimes assume the way to get a child's view before the judge is a letter, or testimony. Neither works well. A letter to the judge is a one-sided communication the court cannot properly consider, and judges are loath to put a child on the stand against a parent. Colorado provides other routes, each designed to keep the child out of the courtroom.
Under C.R.S. § 14-10-126, on a party's motion the judge may interview the child in chambers. The interview must be recorded and made part of the record, the court must explain why it granted or denied the request, and it must give paramount consideration to a request where the child has alleged domestic violence or abuse. The interview is discretionary, and appellate decisions caution judges to weigh what a child says knowing it "did not pass through the crucible of cross-examination."
More often the child's perspective reaches the court through a child and family investigator under C.R.S. § 14-10-116.5, a parental responsibilities evaluator under § 14-10-127, or a child's legal representative under § 14-10-116, roles this blog covers separately. What matters here is that these professionals interview children and are trained to recognize rehearsed language. The statute weighs a child's wishes only if the child is mature enough to express "reasoned and independent preferences." A coached preference is not independent, and the coach is the one who loses when that comes out.
Tools That Keep the Fight Out of the Child's Life
C.R.S. § 14-10-124(7)(d) requires the parenting plan to state how the parents will communicate, and that clause is where a family can engineer the conflict out of a child's day. The provisions that work:
- All non-emergency communication in writing through a co-parenting app that time-stamps messages and cannot be edited, with a response deadline and a businesslike-tone rule.
- No messages, money, documents, or questions pass through the child, and neither parent discusses the case, the other parent, or finances within the child's hearing.
- Exchanges at school or daycare wherever the schedule allows, so the parents do not meet at the curb.
- Both parents get school, medical, and activity information directly from the source, not from each other and not from the child.
When the parents cannot manage even that, a parenting coordinator under C.R.S. § 14-10-128.1 can be appointed after final orders, on findings that the plan is not being implemented and mediation failed or is inappropriate; a decision-maker under § 14-10-128.3 requires both parents' consent. This blog covers both roles separately.
One more point, because it explains why a lawyer is writing this rather than a therapist. A comment to Colorado's Rule of Professional Conduct 2.1 says that in a parental responsibilities case, a lawyer should consider advising the client that parental conflict can have a significant adverse effect on minor children. Good custody lawyers give that advice early and repeat it.
Telling the Children: A Trial Lawyer's Version
Everything a parent says to a child in the first weeks will be repeated, to the other parent, to a teacher, and eventually to an investigator. Plan the conversation with that in mind.
- Tell them together if you possibly can, with a script agreed in advance. Ten minutes is enough. Tell all the children at once so nobody hears it secondhand.
- Say what will change and what will not: which house, which school, that the dog stays, that both parents remain their parents. Do not explain why the marriage ended; there is no age-appropriate version.
- Say it is not their fault and not their decision. Do not promise them a choice about where they live. Colorado gives children no right to choose, and a parent who promises one has handed the other side an exhibit.
- Wait until there is a real plan, whether temporary orders or an agreed schedule, so what you tell them turns out to be true.
- Tell the school and the pediatrician within the week, so the adults around the child understand any change in behavior.
Then stop. Do not ask what happened at the other house. Do not correct the other parent's version. The parent who says the least to the child about the case is, in nearly every file, the parent the judge trusts more.
Talk to a Denver Divorce Attorney About Protecting Your Children in a Custody Case
Aaron Herzberg is a divorce attorney in Greenwood Village, Colorado, serving Denver and the Front Range, with more than 30 years of trial experience and a practice focused on divorce, custody, and financially complex family law. Custody cases are the ones I fight hardest, and the strongest custody case is built by a parent who handled the first month well. A first meeting is a paid consultation, not a free call and not a sales pitch.
Read the full guide on DenverDivorce.com: Parental Responsibilities (Custody) in Colorado.
Educational information only, not legal advice. Reading this article does not create an attorney-client relationship.
