Best Interest of the Child

Colorado Standard

Courts will consider a multitude of factors and criteria when making a best interest determination, such as:

  • courts consider the interaction of the child with the parents, brothers and sisters, and any other person who affects the child.
  • home, school and community adjustments are considered. For example, if sufficient evidence is provided that removing the child from his or her current school will result in a significant decline in education or overall experience, then this will affect the court’s decision.
  • the mental and physical health of everyone in the child’s life. The mental and physical health of the parents can be a factor. If one of the parents is deemed unfit either mentally or physically, this could affect the court’s decision of which parent takes custody of the child. If the parent is physically unable to care for the child, but has the financial means to hire, this physical hindrance may not be as important as it seems.
  • examine the willingness of each parent to share the child.
  • the parent’s past involvement with the child will be considered, including the value system each parent holds and time spent with the child.
  • proximity is considered when practical decisions concerning visitation are made. For example, if the parents live one to four hours apart, it would not be in the best interest of the child to divide parenting time equally. An every-other-weekend scenario is more likely in those cases.
  • each parent’s ability and willingness to foster a loving relationship between the child and the other parent
  • whether each parent’s history with the child reflects a system of values, time commitment, and mutual support
  • whether either parent has committed child abuse or domestic violence, and
  • each parent’s ability to put the child’s needs ahead of his or her own.

 

Wishes of the Child

It is often asked if the child gets to choose where and with whom they live with after a divorce. A child who is mature enough to express a reasoned opinion on the issue will be allowed to do so, and the court will also consider how close the child’s relationship is with each parent. Ultimately, the judge decides where the child should live. Courts’, if the child is of appropriate age, will consider if the child expresses an interest in living with one parent over the other. Normally, this is one of the most important factors, especially with older children. However, it is by no means the only factor. The court could deem that the parent the child wishes to live with cannot provide a suitable environment, so the child must live with the other parent or guardian. During the prior to an established final parenting plan, the Courts have to enter interim orders regarding visitation, and parenting time. The courts will consider several key points when deciding visitation:

  • Both biological parents have the right to child visitations
  • If there is no evidence against a parent saying they are unfit to have involvement in the child’s life, the courts will allow visitations from both parents, presuming it benefits the child.
  • In some cases, the father may need to provide paternal proof that they are biologically related to the child.
  • Both parents may have to submit a parenting plan to the courts, outlining their decisions related to health care, education, environment, etc

Establishing a final parenting plan in the child’s best interest can be a long, drawn out process that is frustrating and stressful.