Can a Child Choose Which Parent Will Receive Physical Custody?

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Child custody matters are one of the most challenging aspects of the divorce process. Determining how parents will share custody is never easy, and in many cases it’s downright maddening. Under the worst circumstances, spouses can devolve to their most puerile state and needlessly drag out custody issues. Family courts in Colorado have well-established procedures in place to ensure that custody arrangements can be determined in a fair manner. One of the pillars of custody determination, as we will discuss, is the principle of the “best interests of the child.”

Many people wonder: if a child states a preference on the issue of physical custody, will this preference be considered by the court? Let’s explore this question in a bit of detail.

Colorado Judges Will Give Weight to a Child’s Preference

When a child states a preference for a certain parent when it comes to physical custody – referred to as “parenting time” in Colorado – this preference can be taken into consideration by a judge. However, a child’s preference will only be given weight if the child is mature enough to have a reasoned and sensible opinion. This largely depends on age, but readers should know that there is no bright line rule or cutoff when it comes to age. This means that judges will have to evaluate things on a case-by-case basis. If a child is mature enough to give a preference, then it may have weight in the overall custody determination.

Judges not only have to determine whether a child is mature enough to state an opinion, they also have to consider other factors when deciding how much weight to give. For instance, judges need to be sure that the opinion isn’t based on trivial reasons. If a child wishes to be with one parent simply because of greater leniency, or lavish gifts, this wouldn’t hold weight in the determination. Likewise, if the judge sees that the opinion is being influenced by the direct involvement of one parent, then this will negate the opinion.

Children Don’t Always Have to Testify in Court

Another concern when it comes to a child’s preference is whether the child will need to testify in court. Testifying in court will likely be quite stressful for a young child, just as it is usually stressful for adults. The solution to this issue is that judges typically interview children in a private setting, such as the judge’s chambers, so that child will feel more comfortable and be able to articulate their opinion more easily. Importantly, a court report is required by law to record the conversation between the child and the judge.

The Importance of the Best Interests of the Child Standard

Even if a child’s opinion does carry weight, it’s important to know that this opinion will still only be one factor in the overall analysis. As always, the analysis in Colorado will invariably be informed by the “best interests of the child” standard. This means that judges will consider all relevant factors, not just the child’s preference, and then make a determination which best conforms to this standard. Just because a child states a certain preference doesn’t mean that a judge will necessarily follow this preference in the final determination.

Contact the Drake Law Firm for More Information

For more information, please contact the Drake Law Firm today by calling 303-261-8111.


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The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction. No information in this post should be construed as legal advice from the individual author or the law firm, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting based on any information included in or accessible through this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.


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2117 Ford St.
Golden, CO 80401

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