Can Children Express Preference in Colorado Custody Proceedings?

Learn when and how Colorado judges will consider a child’s wishes when they make custody decisions.

By , Retired Judge

When parents are getting divorced or separating, the most challenging issues they face are usually related to physical and legal custody of their children—where the kids will live, how often each parent will see them, and how parents will make important decisions concerning their children.

Sometimes, parents who are in a custody battle overlook what the children themselves want or, even worse, try to manipulate or coerce a child into choosing sides. In order to prevent these problems, Colorado law requires judges to consider what the children want—but not necessarily to follow those preferences.

The Role of Children's Preferences in Custody Decisions

If the parents can't agree on a parenting plan, a judge will have to decide for them. In Colorado, as in all states, the overriding principle in all custody disputes is that the parenting plan must be in the child's best interests. But how do judges determine what's best for a child?

Colorado's child custody laws address that question by requiring judges to consider certain factors. The child's wishes are one of those required considerations—but only one. The judge will also take into account the parents' wishes, as well as a number of other specific circumstances in the case, including any history of domestic violence. (Colo. Rev. Stat. § 14-10-124(1.5)(a) (2022).)

Do Children Have to Be a Certain Age to Express Custody Preferences?

Colorado doesn't set any age limit on its requirement that a child's custody preferences be considered. Rather, the law only states that a child should be "sufficiently mature to express reasoned and independent preferences." As a practical matter, the older the children are, the more weight a judge is likely to give to their opinion about which parent they want to live with most of the time (sometimes called the "primary residential parent"), and how much they want to spend time with the other parent.

When Will Judges Follow Children's Custody Preferences?

The law in Colorado doesn't require judges to prioritize children's wishes—just to take them into account along with all of the other relevant circumstances. In weighing a child's preference, it's important for the judge to determine the reasoning behind the child's opinion. For example, if a child simply wants to live with the parent who is more lenient or gives more lavish gifts, the judge won't give the child's preference much weight. But if the child expresses a desire to live with the parent who's more loving or engaged in the child's life, the judge is much more likely to take that child's wishes into consideration.

Do Children Have to Testify About Their Custodial Preferences in Court?

Under Colorado law, children don't have to testify in court regarding their custody preference. In fact, the law states that if a judge is going to interview a child as to the child's wishes, it should be done in the judge's chambers. (Colo. Rev. Stat. § 14-10-126(1) (2022).) The purpose is to spare children the anxiety of sitting in a witness chair in an intimidating courtroom and having to express a choice in front of their parents (although judges do have the option of allowing attorneys to be present for the interview). Judges will typically keep questions to a minimum to make sure the child doesn't feel harassed or embarrassed.

Just because the law permits interviews in chambers, it doesn't mean that a judge must conduct one. (In re Custody of
C.J.S., 37 P.3d 479 (Colo. Ct. App. 2001).)

It's fairly standard for judges to have children interviewed by custody evaluators who can then inform the court about the children's wishes. Custody evaluators typically are mental health professionals who have met certain legally imposed standards. (Colo. Rev. Stat. § 14-10-127(1)(a)(I)(A) (2022).) In particularly contentious custody cases, the children may be represented by their own attorney. Likewise, the judge may appoint a guardian ad litem to represent the children's best interests.

When Can a Child Refuse Visitation in Colorado?

In Colorado, children don't have the legal right to refuse to visit with a parent until they're legally considered an adult (18 or older under Colo. Rev. Stat. § 19-1-103(10) (2022).), or they otherwise become legally emancipated. Both parents and children must obey the court's visitation order. So if a child is refusing visitation, the primary residential parent has the responsibility to get the child to cooperate. Colorado takes the parenting time issue so seriously that the legislature authorized the development of a Parenting Time Enforcement Program. (Colo. Rev. Stat. § 14-10.5-104 (2022).)

Of course, any parent knows that as children get older, it can be difficult to make them do something they absolutely refuse to do. Judges recognize that existing parenting plans might become less appropriate as children age or the parents' circumstances change.

If your current parenting plan just isn't working anymore, you and the other parent could agree on a change, as long as the judge approves your agreement and incorporates it into a new court order. Otherwise, you may file a "motion" (written request) with the court, seeking a custody or parenting time modification. As with any aspect of child custody and parenting time, the judge must find that the requested change is in the child's best interests. (Colo. Rev. Stat. § 14-10-129(1)(a)(I) (2022).)

Note that if you're seeking to substantially change the parenting time and to change the primary residential parent, you won't be allowed to file a similar motion until at least two years after the judge has made a decision on your current motion, regardless of the outcome. The only exceptions are if there's proof that:

  • the child's present environment may endanger the child's physical health or significantly impair the child's emotional development, or
  • the primary residential parent intends to relocate with the child to a residence that substantially changes the geographical ties between the child and the other parent.

(Colo. Rev. Stat. § 14-10-129(1.5) (2022).)

Getting Help With Colorado Custody Disputes

You may avoid lengthy and expensive court battles over custody disputes if you and the other parent can reach an agreement on the issue. When you're having trouble agreeing on your own, custody mediation may be a way to work through your obstacles. In fact, when there's a dispute involving parenting time, judges may require that the parents seek mediation. (Colo. Rev. Stat. § 14-10-129.5(1)(c) (2022).)

According to the Colorado Office of Dispute Resolution, the parents must generally agree on who will attend a mediation session. And children are almost never a part of the mediation.

At the end of the process, the mediator will prepare a written memorandum that reflects any agreements that the parents reached. Once they both sign it, they can submit the agreement to the court, so that it can be incorporated in an official court order.

If you and the other parent aren't able to work out a custody agreement, a family law attorney can help you figure out what to do next in order to protect both your parental rights and the interests of your children.

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