Getting divorced with children can be a much harder, emotional experience. While needing to do what is best for you and your partner to move forward, you also have to plan for your children so they suffer as little as possible in the process.
Part of that includes determining how much time the children will spend with each parent during the year. You want to be sure the plan considers what each parent’s work and travel schedules realistically allow, the needs of the children, their input if they are old enough, and their school and activity schedules. Additionally, opportunities for continued relationships and bonding with both parents, so long as it is safe, are key considerations.
Part of drafting that plan requires you to understand custody options, known as physical or residential care in Colorado. The Centennial State provides three options for physical care:
1. Shared: the child or children are with each parent for at least 93 overnights each year. C.R.S. § 14-10-115(3)(h).
2. Split: the parents share the physical care of one or more children, but the physical care of another child is shared differently. C.R.S. § 14-10-115(3)(i). Note this only applies when there are two or more children.
3. Sole: A child resides with one parent for 273 or more nights per year. Sole physical care does not necessarily mean the other parent has no overnights, just that the parent without sole physical care has 92 or fewer overnights with the child.
Shared Physical Care
Shared physical care is by far the most common arrangement. Colorado law endorses this arrangement, stating “in most circumstances, it is in the best interest of all parties to encourage frequent and continuing contact between each parent and the minor children of the marriage.” This is intended to encourage love, affection, and contact between the children and the parents. Shared physical custody does not have to be 50-50, but often is.
Common arrangements include 2-2-3 with each parent receiving two overnights in a row and alternating weekends; week on, week off; or a consistent 4-3 or 5-2 overnight schedule. Each of these constitutes shared custody.
Rarer but not unheard of are plans that provide for a child or children to spend summers or holidays with one parent and the school year with the other parent. This is most likely to be granted in situations where the parents are separated by larger distances, live in different states, or if one parent has seasonal work demands. So long as the number of overnights with each parent is at least 93, this constitutes shared physical care.
Split Physical Care
Split physical care is usually necessitated by a special circumstance that makes it in the child’s best interest to spend more time with one parent than another. Think, an infant child that is still breastfeeding. If you and your partner have more than one child, the older child could be with both parents 50-50, while the infant remains with the mom for all but one overnight per week or 52 overnights in a year. This would mean the mom has sole physical care of the infant, but the parents share residential care of the older child.
This could also arise if one child’s activities or academics are better suited to stay with one parent, while another child at a different age spends equal time with both parents. The situation can be flexible to meet the parents’ and the children’s needs and ages.
Split physical care does not necessarily mean that a parent has sole physical care of one child and physical care of the other child is shared. It just means that the overnight schedule is divided differently, so one child could be 70-30 with dad having more overnights, while the other child is 60-40 with the other parent having more overnights.
Colorado makes this distinction in order to calculate child support. If you want to arrange split physical care, make sure you do a separate child support calculation for each child that falls under a different schedule.
Sole Physical Care
Remember that sole physical care does not require a child to live only with one parent. The child need only live with one parent for 273 or more nights per year. It also does not require that either parent have sole decision-making.
Like split physical care, this is a dividing line created for child support calculations. Colorado law states that a parent who has 92 or fewer overnights per year does not duplicate as many expenses. Thus, the full amount of child support is due. The duplication calculation, part of the shared physical care child support guidelines, is removed. As addressed in the child support section, parties with at least one child for whom they share physical care use Worksheet B. Where there is sole physical care, the proper guideline calculation for that child can be determined under Worksheet A.
Changing Physical Care
Parents can work together flexibly to address things as they come up, such as vacations or special requests. The physical care plan is not set in stone, and you can vary from it when you both feel it is appropriate. But if a question arises, it is helpful to have the groundwork laid to resolve a dispute.
Although physical care plans can generally be modified when the parties would like, the majority of physical care cannot be changed for two years after it is made an order of the court. If the plan adds an overnight for one parent that does not change the majority parent, such as going from a 4-3 to a 5-2 schedule with the same parent having 4 and then 5 overnights, this can be done at any time based on the child’s best interests. Similarly, a 60-40 plan can be changed to 50-50 at any time because the majority parent is not changing if physical care is made equal.
When one parent has four overnights per week, though, and the other parent wishes to modify the physical care plan so they have the majority of overnights, that must come after two years from the last order. If a child is truly endangered, switching the majority parent can be requested within two years, but only in that circumstance.
Some Final Thoughts
There are many resources to help you decide the best physical care schedule for your family. Whether you choose to speak with an attorney, divorce coach, or divorced friends, do what is right for your unique situation and will be best for your children.
Divorce is an adjustment, yet it also creates opportunities. Parents often find they are more present with their children in shared custody situations because they are able to recharge when their children are with the other parent. With multiple children, parents can also build in one-on-one opportunities that allow them to give a sibling individual attention. And children often relish decorating two rooms and duplicating holidays.
If you put the kids first, the rest will fall into place.