Can Children Choose Where to Live After a Divorce?

Category: Family Law FAQ

Child custody (or allocation of parental responsibilities, as it is referred to in Colorado), is one of the most emotional and difficult topics in family law. Whether your divorce is amicable or messy, though, it’s something you need to talk about if you have children with your ex. In many cases, exes have very different opinions regarding their relative rights for custody over any children they had together. But what about the opinions of the children themselves? Do children have a legal right to make decisions about where they live and which parent gets decision making responsibilities?

These kinds of distinctions are important to consider, especially in Colorado, where family law judges will not hesitate to make custody decisions for families if they are unable to do so themselves. A judge will evaluate multiple factors when making parenting time determinations, including a child’s preferences, depending on the circumstances of the family. To learn more about a child’s right to choose and how a modification to your parenting agreement could affect your family, continue reading or call the Denver family law team of Halligan LLC now at (720) 608-2361.

Do Family Court Judges Allow Children to Choose Where They Live?

In Colorado, the two main categories of child custody are “parenting time,” which is how much time each parent is entitled to spend with the child, and “decision making responsibilities,” which is the legal decision-making power of one or both parents. Decision making may be awarded jointly to both parents or solely to one parent, depending on the best interests of the child.

Colorado law generally encourages regular contact between children and both parents. When a court order is entered for parenting time, parents and children alike are required to follow that order and the schedule established (or adopted) by the court. However, in certain circumstances, regular contact with one or both parents is not in a child’s best interests.

When the court makes parenting time determinations, it will consider the following:

  • The wishes of each parent regarding parenting time
  • The child’s relationships and interactions with their parents
  • The child’s assimilation to their local community and school
  • The mental and physical health of each parent
  • The mental and physical health of the child
  • The ability of each parent to foster a positive relationship between the child and the other co-parent
  • The ability of each parent to put the child’s needs ahead of their own
  • Any history of domestic violence and/or child abuse
  • The geographical location of each parent
  • The child’s desires, if they have the maturity to make independent judgments

When establishing parenting time orders, judges are prohibited by law from considering either parent’s sex or any conduct on behalf of either parent that has no direct effect on the child(ren) in question.

When Do Judges Consider a Child’s Preference?

Though it is rarely a determining factor, the law specifically requires Colorado courts to consider children’s preferences in parenting time determinations, as long as children are sufficiently mature. In these cases, maturity has less to do with a child’s age and more to do with their ability to express rational and independent opinions in their own best interests.

This means that judges do not necessarily follow any kind of age minimum when deciding whether to consider a child’s preference, and instead decide on a case-by-case basis whether to consider a child’s preference.

In reviewing a child’s preferences regarding parenting time, a family law judge will typically consider the following elements:

  • The best interests of the child
  • Whether the child is mature enough to present a reasoned argument for why they would prefer that one parent have custody over the other
  • Whether the child may be expressing a preference based on the relative leniency or generosity with gifts of one parent over the other
  • Whether the child’s preference is based on their perception of one parent as being more loving or involved than the other
  • Whether one or both parents are attempting to unfairly influence the child’s preferences or decision
  • The opinions of appointed mental health professionals or evaluators regarding a child’s “true” wishes

Do Children Have to Testify About Their Preferences in Court?

If your child is mature enough to express a reasoned opinion regarding their custodial preferences, you may be wondering whether they will be required to testify about their wishes in open court. Judges understand that this could put children in a difficult and awkward position, so it’s extremely unlikely that they will force children to testify in front of their parents.

Instead, in limited circumstances judges may interview children inside their private chambers, away from both parents. Sometimes, the attorney of each parent may be allowed to be present for the interview, and interviews are usually recorded by court reporters. However, an in chamber child interview is extremely rare and usually the courts prefer to appoint a Child and Family Investigator or Parental Responsibilities Evaluator.

If a Child Wants to Modify Parenting Time Arrangements, How Does That Affect Child Support?

Child support orders in Colorado are only modified if there has been a “substantial and continuing” change of circumstances since the last child support order was entered. Modification of parenting time, as well as changes to either or both parents’ situations can be considered substantial and continuing changes for the family.

Contact the Denver Family Law Attorneys at Halligan, LLC Today

No matter how simple or complicated your custody case, the Denver family law attorneys of Halligan LLC can help. Our award-winning team has helped thousands of Colorado families just like yours who struggle with complex and sensitive custody issues. We are here to guide you toward your best possible outcome, and our compassionate staff is ready to start taking action in your case today. Call us at (720) 608-2361 or contact us online to schedule your phone or video consultation now.

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