October 23, 2017

Can a child determine child custody?

Determining child custody can be an emotional process. Unfortunately determining child custody takes some time and consideration. A common question asked is whether or not the child can have a say in his or her own child custody. The short answer is no.

Colorado Courts heavily tend to stay away from involving the children in custody matters despite being a factor in the Best Interest Standard. The factor considers “the wishes of the child if sufficiently mature enough.” The problem with this factor, is the Court makes it very difficult for child’s opinion to get into the Courtroom.

The reason why it is a difficult feat is because it is incredibly rare for a Judge to allow a child to actually testify to custody matters. Only on extreme, special circumstances will a Judge allow a child to testify. Even then, the Judge will most likely not allow the child to be questioned in open court, but instead in a private interview with the Judge. Thus far in my experience as a family law lawyer, I have never seen this done. Judges do not want to involve children in this process.

That being said, parents are not allowed to tell the Judge what children tell them. As bizarre as that may seem, it is actually quite intuitive. Out of court statements by a person not in Court is called hearsay. The reason why Judges don’t allow this sort of statement is because the person who allegedly said it, is not available for the Court itself to question him or her. In other words, if the Judge didn’t restrict out of court statements, people would start making up whatever they wanted to because there is no one to refute the statement. This is even more severe when a parent is quoting a child.

Children are incredibly impressionable. The Court does not want to put pressures on a child that a child may or may not be able to handle. The Court does not want parents trying to persuade a child to live with them because as a result a parent could begin to alienate the other parent. The goal is to be as impartial as possible in order to not compromise the child’s relationship with either parent. In the long run, leaving the child out of the custody battle is always the healthiest option for the child and the child-parent relationship.

Now, just because the child is not allowed to testify, does not mean the child’s opinion is automatically not considered. Generally speaking, when a child’s opinion is considered, there are usually serious accusations about the other parent floating around. In serious situations where allegations of abuse, neglect, mental illness, or domestic violence are occurring, experts are a good idea. There are three types of experts in a family law case, a Child Legal Representative, a Child Family Investigator, and a Parental Responsibilities Evaluator. Read our Blog about the different experts.

These experts are a good tool for a complicated case because they are able to interview the child directly and provide a recommendation to the Court based on that interview. This is the most effective way to get a child’s opinion into the Courtroom.

Christopher Nicolaysen is a Family law Attorney who practices in Colorado Springs, CO. He graduated from Denver Sturm College of Law, and has been practicing law for several years now. Christopher Nicolaysen is passionate about helping you solve your family matters. Learn more about his experience here.

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