Most states call it custody.

In Colorado, not so much. While there is such a thing as “residential custodianship,” it’s not what most think of when the word “custody” is shuttlecocked into play. Rather than the who-gets-the-kids-when concept that the word custody usually engenders, the concept of residential custodianship pertains to the children’s legal address even in the event that the parents share time with the children equally.

What Colorado calls parenting time is, umm … parenting time. And the default starting point vis-à-vis the kids is, if mom and dad are going their own ways, that each party is presumed, absent countervailing evidence, to be a fit parent. Accordingly, the playing field is level and each should be entitled to share and share alike when it comes to caring for and being with the kids.

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It should be stated that, without equivocation, the bedrock upon which all court decisions regarding the children of separating couples is the welfare of the children. Simply, what is best for the kids is the light by which the court is steered.

You may have noticed above, that I’ve twice used the term “separating couples” or its analog instead of “divorcing” couples. And that is by intent. You see — and this may shock you — but in these modern times of ours, in some parts of the country, more than 50% of births are out of wedlock. In no state are out-of-wedlock births less than about 18 percent. Among some demographics, the rate is 6 in 10. 

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What a lot of folks don’t know is that even if a couple was never married — and frankly even if the whole of their relationship was a one-night stand — if a bouncing bundle of joy or two results, if the parties part, the kids must be accounted for. Who will financially support them and in what proportion? Who will have them when? Married or unmarried, when it comes to the kids, it doesn’t matter.

Speaking broadly, child support — the obligation to provide financially for a child, whether conceived in or out of wedlock — is dictated by statute. Who owes whom what in support of the child(ren) (except in the instance of very high-earning parties), is the function of a mathematical formula that considers: the incomes of the parents, the incomes relative to one another, the number of children, and how many overnights each year the children will be in which parent’s care. 

Tossed into the formula are such other matters as the costs of daycare and insurance and which parent is bearing how much of the cost of each. One-night stand or 25-year marriage, it’s all the same (except, as a practical matter if a child results from a brief fling, it is less likely that there will be equal sharing of the child). The first parenthetical above should not suggest to you that high earners somehow get a pass. Instead, high earners are literally off the statutory charts and the court is free to craft support that’s fair under all the circumstances.

Interestingly enough, statutory child support does not take into consideration the cost of living in one region of the state compared to another. Support in Cherry Creek and Aspen is the same as in Pueblo, Limon, or Brush. Although, I’d wager a buck goes farther in Brush than Snowmass, it is equally likely that a Snowmassian is off the statutory charts and equitable support will be crafted by the court.

What then about some other factors to consider?

First, who gets to decide what is for the kids once the couple parts ways? There are generally considered three (and sometimes four) areas of major decision-making that must be sorted out. Who gets to make: educational decisions, health care decisions, place of residence decisions, and sometimes the religious upbringing of the kids? Often such decisions are jointly made, but not always, and how this will shake out must be, hopefully cooperatively, worked out. Then, there are the more minor matters regarding day-to-day decision-making for the kids, things such as: hygiene, use of electronic devices, tattoos and piercings, driving, house rules, and a host of others. These too require some attention.

Perhaps the biggest one, one that is often a source of conflict, is who will get the children when? And corollarily, which parent will enjoy what holidays and vacation time with the kids and on what schedule?

When a couple separates, there’s a lot to sort out. Even if they were never married, if children resulted, there are still important things with which to deal, preeminently the welfare of the children, their financial support, and the allocation of parental rights.

Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Robbins may be reached at 970-926-4461 or Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale),” “The Stone Minder’s Daughter,” “Why I Walk so Slow” and “He Said They Came From Mars (stories from the edge of the legal universe)” and “The Theory of Dancing Mice” are currently available at fine booksellers.