Frequently Asked Colorado Custody Questions Part 5
- How old does my child have to be to decide where he wants to live?
As custody lawyers in Denver, this is perhaps one of the most commonly asked questions. People have varying pre-conceived notions regarding when a child’s wishes govern in a custody or modification case. Some people believe the magic age is as early as 12. They are wrong. In reality, there is no statutorily set age at which a child gets to decide where he or she will live, or whether he or she will see the other parent for visitation. That being said, courts and statute recognize that children’s wishes matter and that those wishes should be considered when children reach a suitable age to weigh in on the issue. As a general rule of thumb, we will tell clients that by 15, 16, or 17, most court’s will start to put a much greater weight on a child’s wishes and may consider changing custody or visitation based on such.
Some judges will let the child’s wishes govern outright at this age, recognizing that you cannot force a 17-year old to be somewhere he or she does not want to be. Other courts may change time, but still force some sort of relationship, or counseling, even if a child is 16 or 17. In conclusion, there is no magical age, but there is an age range in which the child’s wishes may carry greater weight. As part of the equation, a court will also look into the environment into which the child wishes to go. A court is not going to give a 15-year old free range to move into mom or dad’s party house, with lax rules and no concern for grades or development. Our attorneys can help you assess what is going on with your teenager and what legal steps may be worth taking in your Colorado visitation or custody case related to his or her wishes.
- We got divorced in Colorado, but have both moved to different states. Does our custody case remain in Colorado?
The answer to this question depends on various factors. Pursuant to Colorado Revised Statutes, Title 14, Article 13, the Uniform Child Custody Jurisdiction and Enforcement Act, if Colorado custody orders were issued, Colorado retains what is called “exclusive continuing jurisdiction,” unless a couple of different factors present themselves. The primary issue giving rise to custody jurisdiction being transferred to another state will generally depend on whether one parent remains in Colorado. If the children and one parent have been gone for 6 months or more, there is an argument that jurisdiction could be changed. However, pursuant to C.R.S. 14-13-202, jurisdiction would remain in Colorado unless the children and both parents are gone. With the above posed question, both parents have moved away from Colorado. As such, it would be proper to transfer jurisdiction to the state in which the children now reside, presuming they have been there for 6 months or more. As jurisdiction under the UCCJEA flows with the children, not the parents, there shouldn’t be a battle over which new state will assume jurisdiction. Though a case may originate here, the law recognizes that people move. It would make no sense in this instance for Colorado to retain jurisdiction when both parents and the children are elsewhere.
- My wife refuses to let me have my court ordered visitation with the kids. What should I do?
Court’s take the following of orders regarding visitation seriously. The initial presumption of many people in this situation posed to our experienced Denver custody and visitation attorneys is that contempt of court proceedings should be initiated. Contrary to this common belief, we generally suggest the filing of a motion to enforce parenting time pursuant to C.R.S. 14-10-129.5. With a motion to enforce parenting time, the court can enter orders regarding make-up time. The court can also make modifications to the existing orders to curtail or prevent further violations. Additionally, the court can require the party withholding parenting time to post a cash bond. Further remedies include contempt of court like components, as well an award of attorney fees and costs if it is proven that the other party violated the visitation orders. A significant aspect of a motion to enforce parenting time that makes the option much more appealing than a contempt of court proceeding is that statue indicates a hearing regarding a motion to enforce parenting time should be placed expeditiously on the court’s docket. Conversely, a contempt of court action can take multiple hearings spread out over several months before any relief regarding the denial of visitation occurs.
- I moved to Colorado 3 months ago. Can I file for custody?
Generally, the answer to this question would be “no.” Presuming there are no orders from another state and the child is over 6 months of age, a child must be in the state of Colorado for a period of 6 months before a custody action can be filed or the court can retain jurisdiction over custody issues. As with the question posed above, the 6-month time frame stems from the Uniform Child Custody Jurisdiction and Enforcement Act. C.R.S. 14-13-201 indicates that Colorado is the proper jurisdiction for a new custody case to be heard so long as it is the child’s “home state,” meaning the child has been here for 6 months or more. The purpose behind the UCCJEA is to prevent parties from forum shopping in terms of trying to seek out the best state to meet their needs. Another purpose is to set forth clear ground rules among the states so that there are not differing or conflicting orders from different states regarding the same child or children. One exception to the 6-month rule stems from C.R.S. 14-13-204, which indicates that a Colorado court can entertain temporary “emergency” jurisdiction. The exercise of emergency jurisdiction would only apply in certain, true emergency situations in which protection or relief is needed now. Statute indicates that the non-emergency issues would still likely need to be litigated in the proper “home” state. We can help you with questions regarding Colorado child custody and visitation issues, as well as questions regarding interstate custody disputes.
Main Custody FAQs