best-interest-of-child

Can a Child Have a Voice in Custody/Divorce Proceedings?

Divorce and custody cases can be extremely stressful for children, especially if parents cannot find a suitable compromise. In certain cases, a Colorado judge will take into account the viewpoint of the child in order to ascertain how to protect their best interests. In most circumstances, a child’s statements to his or her parents about the child’s wishes, will not be allowed into evidence because those statements will be deemed, “hearsay.”

Colorado Revised Statute Section 14-10-126, allows a judge discretion to interview children in chambers to “ascertain the child’s wishes as to the allocation of parental responsibilities.” The law also permits the judge to decide if the lawyers can appear during the judge’s interview. A record of the interview between the child and the judge is also required.

How much weight is given to the child’s voice in the interview, however, is dependent on a multitude of factors. This is because custody resolutions must always protect the best interests of the child.

The very best way to give a child a voice in his or her custody case will be greatly determined by the age of the child, and whom did the child talk to about that child’s feelings regarding the custody or parenting issues. In cases where a child is of “sufficient maturity” and has spoken to a therapist or other mental health care practitioner, the therapist who has counseled the child can testify  and let the court know what the child wishes.  Such testimony from an expert is an exception to the child hearsay rule.

Defining the Best Interests of the Child

Colorado statutes specify the best interests of a child as frequent and continuing contact between the child in question and both of their parents. This is unless a parent presents a danger of physical harm, psychological harm, or emotional impairment. Evidence of this danger can be found in prior convictions of violent crimes and other dangerous behavior.

If this is the case, the court may appoint what is known as a CFI – a Child and Family Investigator. A CFI is a professional with specific training that must act as a neutral observer to effectively investigate the presence of a dangerous or harmful parent. They will often interview friends and family to evaluate the situation.  More importantly, if there is a neutral parenting expert, that expert will interview the children and include the children’s statements in the report to the judge, as long as, the child is of sufficient maturity to be able to provide input and an expression of opinions and feelings about the case.

Currently, professional evaluations are discretionary for family law cases involving allegations of domestic violence. However, if a party does not like the findings of a CFI, they may petition for a PRE or a Parental Responsibilities Evaluator. In this situation, parents may undergo psychological evaluation or testing in order for the court to reach a resolution. This process can be extremely stressful, especially if your parental rights are danger.

Gordon N. Shayne is an skillful family law attorney with extensive experience in this area of the law. He provides the insight and legal guidance you need to navigate every type of parental evaluation during a custody battle.

Factors That Affect Child Testimony

Rather than subject a child to the trauma and pressure of testifying in a courtroom and before their parents, a Colorado judge will most likely conduct an interview in chambers in order to ascertain the best interests of the child.

Factors that may affect the weight given to child testimony include:

  • Age/Maturity of the Child
  • Condition of Relationship with Each Parent
  • The Presence of Siblings
  • Intensity of the Child’s Preference
  • Child’s Apparent Emotional State

In Colorado, there is no statute that references a specific age in which a child is “able to testify.” In order for a child’s wishes to be considered by the court, a specific motion must be filed for custody modification.

Protecting Your Parental Rights

There are many reasons a judge could choose to give a child’s wishes more weight than the wishes of the parent. Protect your parental rights with experienced legal representation from Gordon N. Shayne.

Gordon N. Shayne specializes in Colorado divorce and custody law and has over 33 years of experience protecting the rights of his clients. He is available to answer your legal questions about divorce and custody. Contact Gordon N. Shayne today to inquire about your custody situation and schedule your free initial consultation.

 

Disclaimer: The blogs posted on ShayneLaw.com are offered for informational purposes only.   These blogs are not a solicitation for legal business and should not be construed as providing any legal advice or legal opinions as to any specific fact or circumstance.   Specific legal issues, concerns and conditions always require the advice of an appropriate legal professional.   To obtain legal advice or opinions about Colorado family law, personally consult with a licensed Colorado attorney.

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