<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by justamom:
In Colorado, at what age is a judge likely to listen and seriously consider the wishes of a minor seeking to move from one parent's home to the other parent's home?
Is her desire to return to her home state, based on relationships with her father and step-family, other family and friends, competitive sports (which her dad has always coached her in), church, and school a large enough issue to constitute an endangerment to her emotional well-being?
Finally, are the courts more receptive to a request for modification of custody filed by the child, or by the non-physical custodial parent? The child wants an actual change of legal custody, believing her mother does not listen to her or understand her, and has spent days combing the phone book and internet searching for attorneys who help kids.
Signed,
A concerned step-mom
[email protected] <HR></BLOCKQUOTE>
My response:
Child custody and visitation orders generally are modifiable throughout the child's minority whenever the court finds a modification is "necessary or proper" in the child's best interests. Because of the State's paramount interest in the welfare of minor children, parents cannot divest the court of jurisdiction to oversee child custody and visitation during the child's minority. Any stipulation or agreement purporting to impede the court's power to render or modify a custody/visitation order is void and unenforceable. The "changed circumstances" rule is an adjunct of the statutory "best interests" test for determining child custody. It furthers the paramount goal of preserving the need for continuity and stability in custody arrangements, unless some significant change in circumstances indicates a different arrangement would be in the child's best interest. An existing custody order, however it may have originated, reflects the best interests of the child until it is shown otherwise by changed circumstances. It does not matter that the custody order was entered pursuant to a stipulation. Additionally, where a minor child's preferences are relevant to resolution of a custody dispute, the court has an independent obligation to control examination of the child so as to protect the child's best interests; and may require that information regarding the child's preferences be obtained by a means other than calling the child as a witness. Additional standards are uniquely applicable in child custody litigation where a minor child (whatever his or her age) is to be examined on the question of custodial placement preference. The court "shall control" examination of the child witness so as to protect his or her best interests; where necessary to protect the child's best interests, the court may preclude calling the child as a witness and provide "alternative means" of obtaining information regarding the child's preferences. The court must "consider" and give "due weight" to the wishes of children who are of "sufficient age and capacity to reason so as to form an intelligent preference as to custody." There is no prescribed age or mentality. Whether the minor is of "sufficient age and capacity" (so as to satisfy the threshold prerequisite to consideration of the child's wishes) varies with each child. The requisite maturity is not measured by any particular chronological age. Generally, courts become more receptive as the child approaches his or her teenage years, but some courts will listen to children as young as 7 or 8 (e.g., Stuart v. Stuart (1962) 209 Cal.App.2d 478, 25 Cal.Rptr. 893, 894). [See Marriage of Mehlmauer (1976) 60 Cal.App.3d 104, 110-111, 131 Cal.Rptr. 325, 329--court determined 14-year-old boy did not meet § 3042 standard and thus refused to shift custody from mother despite child's wishes; compare Marriage of Rosson (1986) 178 Cal.App.3d 1094, 1103, 224 Cal.Rptr. 250, 256-257 (disapproved on other grounds in Marriage of Burgess (1996) 13 Cal.4th 25, 38, 51 Cal.Rptr.2d 444, 454, fn. 10)--10 and 13-year-old children did meet statutory measure] Regardless of the child's age and "capacity to reason," the court has no mandatory duty to follow the child's wishes. Under any set of circumstances, the law simply requires the court to "consider" and give "due weight" to the child's wishes. Assuming the child meets the threshold "sufficient age and capacity" measure, the child's preferences are entitled to greater consideration ("serious" consideration) in a modification proceeding than would be appropriate in an initial custody determination.
Family court judges realize that a custodial parent's job is difficult, and is the one who must "lay down the law" e.g., bedtime, reminding a child to do homework, cleaning up the bedroom, etc., and all the other "taskmaster" duties. These are not fun and games, and a child tends to gravitate where rules are less stringent, and where more fun can be found. Judge's realize this, and scrutinize the situation quite carefully for reasons why NOT to change custody. Custody changes are realistically disfavored in the law, and you and your daughter will have an uphill battle.
You'll need to prove a significant change of circumstances, and your daughter may be subjected to the rigors of the courtroom setting.
Good luck to you and your daughter.
IAAL
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