Very few family law questions result in as many myths as the question, “When Can a Child Decide Which Parent to Live With?” It’s typical to hear people confidently answer, “When the child is 12 or 13 years old.” Although, that is not correct. This is such a common child custody question in Minnesota that it’s worth going into more detail. We’ll not only answer the question, but by the end of the article, you’ll know when a child’s preference will influence a custody or divorce proceeding in Minnesota.
A Child’s Preference in Custody Determinations and Divorce Proceedings in Minnesota
When someone asks, “When Can a Child Decide Which Parent to Live With?,” s/he is talking about the child’s preference in family law terms. In Minnesota, the court uses “the best interests of the child” when making child custody determinations. To simplify, you can think of “the best interests of the child” as a set of 12 inter-related factors that the court has to consider and evaluate when making a child custody order in Minnesota. One of those 12 factors is, a child’s preference.
“The reasonable preference of the child, if the court deems the child to be of sufficient ability, age, and maturity to express an independent, reliable preference.” (Minnesota Statute §518.17).
Learn more about “the best interests of the child” and custody by reading: Child Custody in Minnesota.
Impact of a Child’s Preference in Minnesota Custody and Divorce Proceedings
As you have seen above, a child’s preference can be one of the 12 factors that the court needs to consider and evaluate when making a custody determination in Minnesota. However, the child’s preference alone does not automatically determine custody in a divorce or custody proceeding in Minnesota. Therefore, in regards to the question, “When Can a Child Decide Which Parent to Live With?,” in Minnesota, the simple answer is, “Never.” In Minnesota, a child may have a voice, but never the ultimate say in the matter.
When a child turns 18 years old, s/he can legally decide which parent to live with in Minnesota, but no sooner.
Although a child’s preference alone would never determine a custody arrangement in a divorce or custody case in Minnesota, it can still have an impact. Although there is no rigidly defined cutoff, typically by the time the child is 11 or 12 years old, the child’s preference will start to significantly influence a custody decision. By the time a child is 16 or older, particularly when the child has the ability to drive, the child’s preference may be given substantial weight by the court.
In fact, in cases where the child is 16 years old or older, judges are well aware that no matter what they rule, the child is very likely to “vote with their feet” regarding which parent to stay with. Realistically, once a child has the ability to drive and his/her own vehicle, it can become more difficult to enforce a custody determination and/or parenting time. However, it’s important to note that just how much weight to give any child’s preference is determined on a case-by-case basis by the court.
When a Child’s Preference Doesn’t Matter in a Minnesota Custody or Divorce Proceeding
In some custody and divorce cases, the child’s preference will not have any role in the court’s final decision. For instance, Minnesota judges will not consider the child’s preference in a custody or divorce proceeding when:
1. The child is too young to reasonably express a preference.
2. The child lacks the cognitive ability, intellectual and/or developmental functioning required.
3. One parent (either deliberately or incidentally) influences the child’s stated preference.
Parental Pressure on a Child’s Preference
In terms of number 3, Minnesota judges are aware of parental influence and pressure. This is part of the reason why the statute reads, “…and maturity to express an independent, reliable preference.” (Minnesota Statutes, Chapter 518.17). A judge may conclude that the child is not able to make an independent or reliable preference, because one parent has repeatedly bad-mouthed the other parent, or gone so far as to instruct the child to express preference for him/her over the other parent in a proceeding. In those circumstances, a judge may hold this kind of behavior against the offending parent when making a final custody determination.
Learn more about: How do I get custody of my children?