My 16 year old Want to live With me. Can I Modify Custody?
You may be able to modify “custody” depending on the circumstances in your case. Firstly, custody is called “parental responsibilities” in Colorado and ties into both parenting time and making child decisions. Colorado child custody, in terms of where the child lives, is going to be modified pursuant to C.R.S.14-10-129.
In a general sense, visitation can be modified if circumstances are such that a change would be in the best interest of the child. However, when a parent seeks to modify parenting time which also changes primary residence, Section 129 sets forth certain standards for doing so. Specifically, to modify primary residence, you would need to show that the other parent has acquiesced his or her primary residence, that the current parenting time arrangement presents a physical danger to the child, or that the current parenting time arrangement puts the child at risk of significant impairment to his or her emotional development. In some instance, proving physical or emotional danger can be straightforward, such as in cases of documented substance or child abuse. In others, the evidence may be subtle, which could necessitate using a Child and Family Investigator or Parental Responsibilities Evaluator.
When parents share equal, 50/50 parenting time, the best interest standard applies to residential modifications. However, when one parent is the primary residential custodian, the stricter statutory thresholds must be met.
Aside from the specific dictates of Section 129, Colorado custody courts are often willing to relax those standards when dealing with older children. When kids reach 15, 16, or 17 years of age, courts are more likely to put a much greater weight on their wishes as relates to visitation modification and primary residence. Most judges understand that teens are no longer little kids who can physically be picked up and put into a car. They have minds and wills of their own. In no way does this mean that courts are willing to just let kids entirely run the show.
When your 16 year old is indicating that he or she wants to live primarily with you your first step should be to talk with the other parent to see if an agreed upon change in custody can be reached. If not, your next step will be to file a motion. At that stage, it’s important to make sure you plead the facts and law correctly. Given the emotional ups and downs teens can go through, it is not a far stretch to plead that their emotional development is at risk if they are truly unhappy residing in the other parent’s home.
As children's statements and wishes are “hearsay,” they are not readily admissible in court. Furthermore, contrary to popular belief, judges are loathe to have kids come to court to testify. Thus, the norm for having your child’s voice heard would through a Child and Family Investigator. Keeping in mind that kids don’t get to call all of the shots, no matter how old they are, a common response from a CFI or a judge will be to recommend or order some form of family counseling for the teen and other parent.
Pursuant to statute, a motion to change primary physical child custody from one parent to another can only be filed every two years, absent danger. As such, if you are pondering seeking a change in custody, you should contact an experienced Colorado custody attorney who can help you throughout the process. With over 60 years of combined legal experience, the attorneys at Plog & Stein are equipped to help with all of your custody needs.