When a Colorado Court is confronted with Parents who disagree about what is the best custody (now called a “parenting plan”) arrangement for their Children, the law requires the Judge to determine a parenting plan “in the best interest of the child”. The difficulty for the Judge, of course, is that both Parents believe they are better than the other; and, both Parents ostensibly want what is best for their Children. To choose between competing parenting plan proposals, the Judge must look to the statutes that provide the criteria to make such an assessment. Under Colorado law, the Colorado Revised Statute 14-10-124, provides the following factors as guidance when determining a parenting plan.
(I) The wishes of the child’s parents as to parenting time;
(II) The wishes of the child if he or she is sufficiently mature to express reasoned and independent preferences as to the parenting time schedule;
(III) The interaction and interrelationship of the child with his or her parents, his or her siblings, and any other person who may significantly affect the child’s best interests;
(IV) The child’s adjustment to his or her home, school, and community;
(V) The mental and physical health of all individuals involved, except that a disability alone shall not be a basis to deny or restrict parenting time;
(VI) The ability of the parties to encourage the sharing of love, affection, and contact between the child and the other party; except that, if the court determines that a party is acting to protect the child from witnessing domestic violence or from being a victim of child abuse or neglect or domestic violence, the party’s protective actions shall not be considered with respect to this factor;
(VII) Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support;
(VIII) The physical proximity of the parties to each other as this relates to the practical considerations of parenting time;
(IX) and (X) Repealed.
(XI) The ability of each party to place the needs of the child ahead of his or her own needs.
Factor II. The wishes of the child if he or she is sufficiently mature to express reasoned and independent preferences as to the parenting time schedule.
Determining the wishes of the Child at the center of a parenting dispute, is trickier than most believe. Parents often think their Child can appear in Court and tell the Judge where they want to live and with whom they want to live. Parents often also believe that there is a law in Colorado regarding at what age a Child may make this decision. Neither belief is true. Children rarely, almost never, testify in Court. Judges know that forcing a Child to testify—even if the Parent insists the Child “wants to testify” — would likely be emotionally devastating to the Child. There is also no specific age designated in Colorado law at which a Child may “choose” with which Parent they wish to live. The Child’s own statements to a Parent or grandparent or teacher also cannot be used in Court—no matter how compelling. With few exceptions, such statements by the Child (“Daddy, I want to live with you, Mommy’s mean to me…”, “Mommy, I don’t want to live with Daddy…”, etc.) because these would be “hearsay” evidence. Hearsay evidence is a statement of a third-party offered to prove the truth of the statement.
So, how does the Court hear the information needed to determine the wishes of the Child? Usually, a parenting expert, like a Child and Family Investigator (CFI) or a Parental Responsibility Evaluator (PRE) must be appointed, investigate and make a recommendation to the Court as to the parenting plan. The parenting expert may convey the statements of the Child to the Court as part of the reason for the recommendation and those statements will be included in a report filed with the Court. Because Colorado law provides for these parenting experts to be appointed by the Court, they may convey the statements of the Child without those statements being “hearsay” evidence. A Child’s Legal Representative (CLR)—also known as a “Guardian Ad Litem”—may also be appointed and this person can speak for the Child and convey the Child’s statements to the Court. However, no report accompanies the Child’s Legal Representative recommendation.
All three parenting experts can help the Court determine what is in the best interest of the Child. They will have spent time with each Parent separately and with the Parent and Child together. They will conduct a home visit to understand the household dynamic and suitability. They will reach out to “collateral contacts” who can provide information regarding the Child, the relationship the Parents have with the Child or any special issues that have arisen.
The down side? Parenting experts are expensive, time consuming and can extend the litigation simply because the time required to complete the investigation. The adversarial process further inflames hostilities and almost always frightens Parents into believing they are locked in an epic battle. Each Parent lobbies the expert to gain favor and present the other Parent in a negative light. Throughout this process, the Child is caught in the middle—often knowing that a Parent is upset, and the Child is the cause. Another down side to having a parenting expert is that the Parents cannot realistically control what their Child tells the PRE or CFI and statements from the Child may not be favorable. A Child who is honest with the expert, may not say what a Parent believes they will say. Also, a Child who has been “coached” is usually evident by what and how they say something. Coaching statements always backfires. In any event, whatever the parenting expert recommends—and why they make that recommendation—will be before the Court and is very persuasive upon the Court.
Sometimes, a Child’s behavior—rather than their words–can be used as evidence of their wishes. A Child who acts out only with one Parent but not the other, may be conveying a message of despair, fear or anger. Such assumptions, though, must be carefully analyzed as motivation to behave a certain way is influenced by many factors—not just who the Child is with at the that time. A Child who cries and does not want to go with one Parent at the exchange, may simply be relating that the whole exchange situation—where they are leaving a Parent– is sad, they hate leaving either Parent and they wish they didn’t have to go through the ordeal.
When determining the wishes of a Child in a custody situation, the attorney and Parent must work together to determine the facts, including the wishes of their Child as to parenting time, and how to best present those facts. Open communication between attorney and Client and an honest analysis of the application of the facts and law, will assist the Parent better understand what can be achieved in the best interest of their Child.