Children and two parents holding calendars and calculators

I hesitate to even mention SB 20-027 because, like its predecessors, it will likely end up on the dust heap of failed attempts to statutorily shift Colorado into an equal-parenting-time state. But an attorney asked about it just this week, so I thought a little perspective was appropriate.

Colorado law provides: “The court shall determine the allocation of parental responsibilities, including parenting time and decision-making responsibilities, in accordance with the best interests of the child, giving paramount consideration to the child’s safety and the physical, mental, and emotional conditions and needs of the child…” C.R.S. 14-10-124(1.5) (Emphasis added).

There is no statutory schedule, either presumed or mandated, for courts to follow, recognizing that, with parenting, there are too many variables for a one-size-fits-all approach. The reality, though, is that absent a reason why equal parenting time is not warranted, courts will typically order equal time (also known as “50/50 custody”).

Mothers Previously Favored in Child Custody Disputes

Some readers may recall the 1979 movie Kramer vs. Kramer, in which Dustin Hoffman starred as a father who became the sole caregiver of his young son after the mother (Meryl Streep) walked out on the family. My recollection of the plot has a few gaps, but the mother later returned, and despite abandoning her son and the father raising him, the domestic relations judge awarded her primary custody based upon little more than the fact that she was the mother.

That movie reflected the natural way of things up to about the 1980s. In the stereotypical nuclear family, the father went to work while the mother stayed home and raised the children. And if a couple divorced, the children lived with the mother while the father moved on, seeing the kids on weekends and maybe for dinners.

Move Towards Equal Parenting Time

In the 1990s, that changed. I’m not a sociologist, but in addition to the trend towards equality between the sexes, the rationale for routinely awarding primary custody to the mother was likely undercut by the fact that women were then active participants in the workforce, and the children were either in school or day care.

When I started in private practice in 2000, Colorado’s child custody system was in transition. The state was well into a process by which fathers who asked for equal parenting time had a realistic chance of getting it. Back then, younger judges were more likely to award equal time to both parents, while older judges, raised in a different era, had a more traditional outlook that favored mothers in custody situations.

There was still a vestige of favoritism toward women. Mothers were more likely to have been stay-at-home parents, or at least taken time off after a baby was born, and adherents of the “tender years doctrine” maintained that infants and toddlers needed the stability of having a primary parent, as if children could not bond equally with both parents.

Equal Parenting Time Now the Norm

In 2026, it’s rare to find a judge who does not at least start from the premise that equal parenting time is in the children’s best interests, absent evidence to the contrary. It’s not exactly a presumption towards equal parenting, but at times it feels like one.

That’s not to say that equal custody is always ordered. Common reasons for limiting one parent’s time include:

  • One parent is a virtual stranger to the children. This is more common in cases involving unmarried parents and infants or toddlers than in dissolution cases where the children are raised in a household with both parents. (Moreover, any limitation on a parent’s time would typically be temporary, as judges would order a step-up schedule to end up at something resembling equal parenting time).
  • One parent’s work schedule is not conducive to being a co-equal parent (e.g., travels a lot, works nights, etc.).
  • The parents live too far apart for an equal schedule to be practicable, especially once the children are in school.
  • It’s in the children’s best interests to limit their time with a “bad” parent (e.g., domestic violence perpetrator or drug/alcohol abuser).
  • The child is still an infant, and the mother is breastfeeding (although it’s increasingly common for judges to simply order that the child can be on formula with the father unless the mother sends expressed milk at parenting exchanges).
  • The child is a teenager with strong views about which parent he/she wants to live with.

Note that the fact that one parent was the children’s primary caregiver does not typically defeat a request for equal parenting time, at least when both parents live locally (when one parent relocates, so equal custody is not feasible, then the children’s primary caregiver still has an advantage in custody battles).

Statute Still Does Not Refer to 50/50 Custody

Teddy Bear holding gavel next to scales of justice

In the past 30+ years, Colorado has moved from favoring mothers to typically treating both parents equally. And there are no Kramer vs. Kramer scenarios here—if either parent is flawed, the court may find it’s in the children’s best interests to award majority parenting time to the other parent—without regard to which is the mother and which is the father.

Back when mothers typically won most child custody fights, the statutory standard for parenting time was the “best interests of the child.” Now, when courts typically order equal time, the statutory standard is still “best interests of the child.”

In other words, this change has occurred due to shifting societal views on parental roles, without any mandate from the assembly to impose a statutory child-custody scheme.

Senate Bill 26-027 to Create Equal Parenting Time Presumption

SB 26-027 (self-titled as the “Parental Equality and Child Empowerment Act” or “PEACE Act”) would codify a formal legal presumption in favor of 50/50 child custody.

Equal Custody Means at least 45%

Note that the bill would not require mathematical equality. The bill would add the following definition of “equal parenting time”:

“a substantially equal annual allocation of a child’s overnight visitations at each party’s residence, with at least forty-five percent of the overnight visitations, subject to reasonable adjustments for the child’s school schedule, holidays, or other logistical considerations.”

Two considerations – not only is equal really no less than 45%, but it need not be imposed if logistical hurdles make it impractical.

Rebuttable Presumption for Equal Parenting

Note also that the bill would not mandate equal (or no worse than 55/45 parenting), no matter what. Instead, it would create a “rebuttal presumption” in favor of such a schedule, but if the family law judge found that the presumption had been overcome, then the judge would determine an appropriate parenting schedule using the traditional “best interests” standard.

And the presumption would only apply if the parents both live within 25 miles of “a geographic location that the court determines is reasonable, including the child’s child care provider, preschool, school…” Not within 25 miles of each other – the parents could each live 24 miles from the child’s school in opposite directions, or 48 miles from each other, and the equal parenting presumption would still apply.

Clear & Convincing Evidence Required to Rebut Equal Parenting Presumption

A parent seeking primary custody has a tough burden—he/she must establish by “clear and convincing evidence” that equal parenting time is not in the children’s best interests.

“Clear and convincing evidence” is a high burden. Most civil cases are “preponderance of the evidence”, which simply means a fact is more likely than not to be true (i.e., greater than 50%). “Clear & convincing evidence” is higher than the preponderance standard, but lower than the super-high beyond a reasonable doubt standard used in criminal cases. Here is a Colorado jury instruction on this standard:

“A fact or proposition has been proved by ‘clear and convincing evidence’ if, considering all the evidence, you find it to be highly probable and you have no serious or substantial doubt.”

I tend to think of clear & convincing evidence as requiring proof to about a 75-80% certainty.

The bill also sets forth a non-exclusive list of grounds to rebut the presumption, including:

  • A parent is not “willing, able, or fit to exercise equal parenting time.”
  • A parent was convicted of child abuse or domestic violence (i.e., more than just alleging and proving abuse at a child custody hearing).
  • “A substantiated history of personal substance misuse.”
  • A behavioral or mental health disorder that impairs a party’s fitness to parent.
  • Substantiated pattern of refusing to share parental responsibilities.
  • Substantiated pattern of refusing to encourage the child’s relationship with the other parent.
  • Geographic or logistical barriers to equal parenting time.
  • The parties agree to an unequal schedule.

If this bill became law, it would seem to change little from the reality of parenting time today. The exceptions to equal time generally echo the reasoning judges already use to “rebut” the unofficial presumption in favor of equal time.

There is one notable exception, however. This bill does not specify that a child’s wish to live primarily with one parent, or a child’s poor relationship with a parent, is grounds to deviate from the presumption. Presumably, that would still matter, since the list does not purport to be the exclusive list of factors a judge can consider.

But the experience of other legal presumptions suggests that what is only a presumption today will tomorrow be written in stone, as the burden of deviating from a presumption is too great.

What Does This Mean?

Probably nothing. And that’s why I typically don’t comment on bills unless they are in the very late stage of the legislative process. Remember that old Schoolhouse Rock “I’m Only a Bill” video from the 1970s?

Senate Bill 26-027 is just sitting up on Denver’s Capitol Hill. Similar bills have been introduced over the years that sought to enshrine 50/50 parenting in Colorado law, and thus far, none have gone anywhere. They are either unnecessary (because most parents already get equal parenting absent a good reason not to) or seen as too rigid when “best interests” requires a more holistic approach. The domestic relations bar has opposed those prior attempts, and I suspect this bill will not ultimately become law either.

Award-Winning Southern Colorado Child Custody Lawyers

Staff Paralegal Attorney Firm Group Shot Portrait

U.S. News & World Report calls Graham.Law one of the Best Law Firms in America. Our managing partner and multiple attorneys are recognized by Colorado Super Lawyers and Best Lawyers. Our family law attorneys have years of experience helping clients navigate the Colorado legal system. We know Colorado divorce & family law inside and out, from complex multi-million dollar property or child custody cases to simple child support modifications.

For more information about our top-rated El Paso County family law firm, contact us by filling out our contact form, calling us at (719) 630-1123 to set up a reduced-rate consult, or click on:

Colorado Family Law. Period.