The hardest thing about divorce with children is preserving family ties while splitting up the parents. Colorado courts want parents to remain equally involved with their children. Unfortunately, that’s not always feasible, and the kids end up living with one parent. But which one? That’s a big decision that parents, or the court, must ponder. So, at what age can your child decide which parent they want to live with?
The General Rule of Thumb
Every child custody case is different. Therefore, Colorado sets no certain age on when children get a say. Judges rule on a case-by-case basis.
However, in general:
- There is no general rule as to the age the child must be in order to have the Court give their voice consideration.
Even when a child’s wishes are heard, the final ruling prioritizes the child’s welfare. This means a child may have to live with the parent they didn’t prefer. Still, kids who are considered mature enough to voice their opinion can influence a judge’s decision.
Determining the Best Interests of the Child
Colorado courts begin all child custody determinations with the presumption that equally-shared parenting time is best. Yet, if judges find it unworkable or not in the child’s best interests, they’ll reconsider this assumption and reward primary custody to one parent. The best interests of the child always come first. — C.R.S 14-10-124 (1)
The child’s preference is one of the factors a court may consider when crafting a post-separation/post-decree parenting plan. However, it’s one of many, and not at all decisive.
Other best interest factors include:
- The parents’ preferences.
- The relationships of the child(ren) with parents and immediate family.
- How the child adjusts to home, school, and community.
- The mental and physical health of all individuals involved.
- Past patterns of parental involvement and mutual support.
- The physical distance between where each parent lives.
- Each parent’s ability to support the child’s relationship with the other parent.
- Each parent’s ability to prioritize the child’s needs.
- A history of child neglect or spouse abuse, if any.
The list included here is spare for the sake of brevity. However, there is much more to learn about each factor, if you’re curious.
Considering the Child’s Wishes
The more mature the child, the more weight will be given to their wishes. However, Colorado family courts do not necessarily equate age with maturity. The law says a child should be “sufficiently mature to express reasoned and independent preference” about the parenting schedule. — C.R.S. § 14-10-124(1.5)(a)(II)
What does that mean in real life? Let’s consider various ages of children whose parents are divorcing, and how a court may consider their wishes.
In normal cases, such a young child would not be considered mature enough to express a reasoned preference. However, not all cases are normal.
A five-year-old having witnessed one parent’s frightening behavior due to drug abuse or adverse mental health could be considered mature enough to express a preference. The same applies if the child has been traumatized by abuse or neglect by one parent.
By age 10, the child could express his or her preference more clearly. Still, the court would give more weight to the other best interest factors. Again, exceptions can be made for a child who has experienced considerable neglect, abuse, or trauma from one parent.
For example: A 10-year-old girl says she wants to live with her dad because “mom is always mad at me and stays in bed all day.” If a court investigation finds merit in that claim, the girl’s wishes carry more weight.
A young teen is typically deemed capable of making a thoughtful, independent choice. However, courts realize that this child might not select the most suitable parent. The teen’s preference could be informed more by short-sighted self-interest than their best interests.
For example: A 14-year-old boy prefers to live with his father because “mom is way too strict on me.” However, fact-finding shows that the father is rarely home due to work and socializing. This suggests a lack of maturity, as the boy’s primary aim is to avoid parental scrutiny and supervision.
Teenagers reaching driving age are no longer young children who can simply be carted around. Therefore, their opinions carry more weight in court when it comes to visitation and primary residence. They have their own thoughts and desires, and should be able to express them independently.
This does not mean that courts will entirely defer to an older teen’s preference. A judge may disregard the choice if it runs counter to the teen’s best interests.
Communicating the Child’s Wishes to the Court
No matter their age, children almost never testify in open court during custody cases. More likely, the child will talk one-on-one with a court-appointed expert. The expert will then prepare a written report and possibly testify about the child’s maturity and expressed wishes.
Can a Child’s Wishes Change a Court Order?
Not in Colorado. A child’s wish to live with the other parent is not enough to change the court’s allocation of parental responsibilities.
Modifying a child’s residence parent requires:
- Filing a motion for modification of orders with the court, and
- evidence of physical or emotional harm.
Letting a child switch residence parents without first modifying the court’s orders breaks the rules. The affected parent might respond by seeking enforcement through a motion.
Dealing with Child Custody Issues? Connect with an Attorney
If you have questions about allocation of parental responsibilities, parenting time, mediation, or any family law matter, give us a call. Our family law attorneys can discuss your case, rights, and options. Call 303-688-0944 to begin your free case assessment.