What I’ve Learned: When Can A Child Decide Which Parent To Live With?

“During and after amicable divorce, parents ask me all the time, ‘When can my child decide which parent they want to live with?’ The short answer is when he or she is 18 years old, but it isn’t quite that simple.  In Colorado, there is no statutory age at which kids get to decide what time they spend with their parents, but courts are required to consider the child’s wishes when the child is mature enough to express a clear and reasonable preference.  If a divorce has enough conflict that a Child and Family Investigator or a Parental Responsibilities Evaluator is appointed, those folks will talk to a child and see what he or she wants and why. That being said, the judge does not have to follow what the child wants if the child’s wishes are not in his or her best interests.  The older and the more mature the child, the more he or she is listened to.


What is in the best interests of the child?  If one parent is simply more lax or lenient than the other, a judge may place less weight on the child’s wishes.  If one parent is more involved and active in the child’s life, then more weight may be given to these wishes. But there are as many different facts to look at as there are families.  At the end of the day, courts are looking to put together parenting plans that serve the child.


Are kids able to testify in court about their preference?  Virtually no judge in Colorado will take testimony in open court from a child whose parents are divorcing.  Sometimes, although not often, a court will talk to a mature child in chambers. In Colorado’s system, the voices of children are to be heard through Child and Family Investigators, Parental Responsibility Evaluators, and parents.  Additionally, there is a lot of groupthink around the idea that children should know as little about and be involved as little as possible in the divorce. I often think how I would feel if I was told I had to be basically excluded from a situation that would have a profound impact on my life.  And in fact, when I used to work as an investigator, I constantly heard from children themselves that they felt like the court system actually treated them as if they did not matter.


I don’t think kids are given enough of a role in the creation of their futures when their parents’ relationship fails.  I have learned that by and large, divorcing people are not the best parents they can be, or have been. Divorcing people function less well than usual, are more ‘me’ centered than usual, and many of their actions are motivated by thoughts of retribution or trying to make themselves feel better.  Their analysis of ‘best interests of the child’ is often colored by their analysis of best interests of them. I also know that kids are a lot smarter, aware, and knowledgeable than we usually give them credit for.


I am struck how every couple of years, documentaries or research will be shown to lawyers and judges where adult children of divorced families talk about their experience of divorce.  People in my profession are surprised when these adults say they wish they had more of a voice in the process as children. No matter what their age, a divorce is generally a child’s most formative experience.


None of this is to say that children should be made to/allowed to choose between their parents, or to be inserted into the divorce process.  (Though I will say that many older children really have moved beyond their parents enough that their choice is not really about a ‘parent,’ but about a parent’s environment and what they have to offer the child.)  Children should be not pawns in divorces and they should be able to have childhoods even if their parents are divorcing. But I’ve learned that one way to honor who our children are and who they will become is by hearing them and treating their voices as crucial to determining their ‘best interests’” (Willoughby).  Learn more at https://willoughbylaw.com/.


Willoughby, K. R. Esq., Genesee Living Magazine.


Categories: Exceptional Representation