Can Children Express Preference in Colorado Custody Proceedings?

Wondering if children can make their own custody decisions? Find out below.

When parents divorce or separate, one of the hardest tasks is determining a custody arrangement that works for both parents and children. While each parent will likely have opinions on custody, each child will also have preferences that should be taken into account. 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 about the effect of a child’s custodial preference in Colorado after reading this article, you should consult a local family law attorney.

Overview of Custody Decisions in Colorado

Colorado courts will decide child custody whenever the parents can’t come to an agreement. Prior to developing a custody and visitation arrangement, the judge must consider 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 he or she is mature enough to have a reasonable and independent preference.

Also, the court won’t presume that one parent is better suited to have custody of the child based on gender. To read more information about custody decisions in Colorado, see Child Custody in Colorado: The Best Interests of the Child.

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 why he or she prefers one parent over the other. If the court decides that the child is mature enough to consider his or her 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.

The judge doesn’t have to follow the child’s preference if it’s not in the child’s best interests. If the court determines that the child’s custody choice, even if it’s an independent and mature decision, is not in his or her best interest, the court won’t grant the child’s 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 stating a custodial preference in the courtroom puts the child in a difficult 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, a court reporter is required to make a record of the interview.

The judge can also refuse to interview the children; it’s up to each court to make that decision. 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 child is separately represented by an attorney or has spoken with a custody evaluator who can provide the court information about the child’s wishes.

If the court does decide to interview the children, it’s up to the judge to decide what questions are asked in the interview. The court may allow attorneys to ask a child limited questions, but parents don’t have the right to “cross-examine” the child. Judges will typically keep questions to a minimum to make sure the child doesn’t feel harassed or embarrassed.

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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