Can Children Express Preference in Colorado Custody Proceedings?

Wondering if children can make their own custody decisions? Continue reading to learn more.

By , Attorney

When parents divorce or separate, one of the hardest tasks is determining a custody arrangement that works for both parents and children. Although each parent will likely have opinions on custody, each child may also have an opinion. Most states require judges to consider a child's preference when deciding custody.

This article will explain how a child's preference affects custody in Colorado. If you have additional questions after reading this article, you should consult a local family law attorney.

Overview of Custody Decisions in Colorado

Colorado courts divide custody into two categories: parenting time (physical custody) and decision-making (legal custody.) Judges can award sole or joint custody, depending on the circumstances.

The law in Colorado encourages frequent and continuing contact between parents and minor children. In most cases, the court begins its evaluation by presuming that joint custody is best, but only if it's in the child's best interest. (Colo. Rev. Stat. § 14-10-124 (1).)

Whether you're going through a divorce or you've decided to separate, if you have minor children, you're going to need to talk about custody. Most parents can work together to determine the best custody arrangement for their family. But, in Colorado, if you can't agree, a judge will decide for you.

Prior to developing a custody and visitation arrangement, the judge must consider and explain the findings of each of the following factors:

  • each parent's wishes regarding parenting time
  • the child's interactions and relationship with each parent
  • the child's adjustment to his or her home, school, and community
  • each parent's mental and physical health
  • the child's mental and physical health
  • each parent's ability to encourage a positive relationship between the child and the other parent
  • either parent's history of domestic violence or child abuse
  • each parent's history of involvement in the child's life
  • the physical proximity of the parents to each other
  • each parent's ability to put the child's needs ahead of his or her own needs, and
  • the child's wishes, if the child is mature enough to have a reasonable and independent preference. (Colo. Rev. Stat. § 14-10-124 (1.5).)

In addition to the best interest factors, when creating a custody order, it's important to note that Colorado law prohibits a judge from considering the following:

  • either parent's conduct that does not affect the minor children, or
  • a parent's sex. (Colo. Rev. Stat. § 14-10-124 (2)(3).)

When Will the Court Consider a Child's Preference?

Colorado courts are required to consider a child's preference whenever the child is sufficiently mature to express a reasoned and independent preference. There is no specific age when a court must consider the child's opinion. Instead, the judge must treat each child on a case-by-case basis.

First, the judge must decide whether the child is sufficiently mature to have a well-reasoned argument on why the child prefers one parent over the other. If the court decides that the child is mature enough to express a preference, then the judge decides how much weight to give the child's opinion.

For example, if a child simply wants to live with the more lenient parent or the parent that gives more lavish gifts, the court won't give the child's preference much weight. If instead, the child states a preference to live with the more involved parent or the parent that is more loving, the court will give the child's preference considerable weight.

Colorado judges are also careful to make sure a parent isn't unfairly influencing the child's opinion. The court may appoint mental health professionals or other evaluators to determine the child's true opinion, and whether a parent is trying to sway the child one way or the other.

If the court determines that the child's custody choice, even if it's an independent and mature decision, is not in the child's best interest, the judge will not order custody according to that preference.

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

Colorado courts usually won't require a child to testify about custodial preferences in court. Since expressing a custodial preference in the courtroom puts the child in a tough position, the judge is more likely to interview the child in court chambers, outside of the parent's presence. The judge may allow the parent's attorneys to be present for the interview. Also, unless the parents agree otherwise, the law requires a court reporter to make a record of the conversation.

The law allows the judge to evaluate each case and determine whether to interview the children. In one case, the court decided not to interview two children who were eight and eleven years old, when other witnesses had already testified about the children's desires.

When deciding whether to interview children, judges consider whether the children have a separate attorney or have spoken with a custody evaluator who can provide the court information about the child's wishes.

If the court believes it's appropriate to interview the children, the law doesn't require the judge to ask specific questions. Instead, it's up to the judge to decide what questions to ask each child.

The court may allow attorneys to question the child, but in most cases, only limited questions. Parents don't have the right to "cross-examine" the child—meaning, a parent can't ask the child why they want to live with the other parent. Judges will typically keep questions to a minimum to make sure the child doesn't feel harassed or embarrassed.

Once the court concludes its investigation, the judge will weigh the child's opinion with the other best interest factors and decide the best custody plan for the family.

Non-Custodial Parents and Parenting Time

Because the court believes that it's in the child's best interest to have frequent and continuing contact with both parents, if a judge allocates primary parenting time (physical custody) to one parent, the court will usually award the other parent scheduled visits with the child.

A typical schedule typically includes alternating weekends, holidays, school breaks, and time with the parent in the summer. Although children can't decide whether or not to go to the scheduled parenting time visits, the court may consider a child's preference when creating the calendar, if the child is of sufficient age and maturity.

As with custody, if parents can agree to a visitation schedule for the non-custodial parent, and the court agrees that the schedule is in the child's best interest, the judge will sign it and put it in the custody order.

Colorado law declares that children have a right to reside in and visit homes that are free from domestic violence and child abuse or neglect. (Colo. Rev. Stat. § 14-10-123.4 (c).) Therefore, there may be situations when contact with a non-custodial parent is harmful or otherwise not in the child's best interest.

For example, if a parent has a history of domestic violence or child abuse, the court presumes it's not in the child's best interest for that parent to have parenting time with the child. The presumption is "rebuttable"—meaning, the affected parent can overcome the presumption by showing proof that parenting time is in the child's best interest. (Colo. Rev. Stat. § 14-10-124 (1.5).)

In some situations, the court may order supervised parenting time, which will take place in the presence of a court-approved third party or a court-sanctioned visitation center. The non-custodial parent is responsible for paying any fees associated with the supervision. If a parent would like unsupervised visits, that parent will need to demonstrate to the court that the visitation will not negatively impact a child's health, safety, and welfare.

If you have additional questions about the effect of children's custodial preferences, contact a Colorado family law attorney for help.

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