When Can a Child Decide Which Parent to Live With?

Children, ideally, would never be asked to choose a parent.

When Can a Child Decide Which Parent to Live With?

When someone asks, “when can a child decide which parent to live with?”, there are many misconceptions. A typical answer is “when the child is 12 or 13 years old.” However, this is false. This is a common misconception.  It may have serious implications for separated, divorcing and divorced parents.

A minor child can never decide which parent to live with.  In Minnesota, judges decide contested custody matters. Child custody is based on “the best interests of the child” standard. (Minn. Stat. 518.17)

This standard is a set of 12 factors.  The court has to consider and evaluate when determining child custody.  A child’s wishes are one of the twelve factors. 

Specifically, a court must consider “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.”  (Minn. Stat. 518.17)  Therefore, although a child can’t decide custody, the court will at least consider a child’s preference.

How is a Child’s Preference Considered?

Courts will decide whether a child is of sufficient age and maturity on a case by case basis.  There is not a bright-line rule regarding at what age this happens. 

However,  by the time a child is 11 or 12 years old, a child’s preference starts to have more influence on 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.

When a child is 16 or older, judges are aware that no matter what they rule, the child is very likely to “vote with his or her feet”.  As a result, once a child has the ability to drive and his or her own vehicle, it can be more difficult to enforce a custody or parenting time order. However, even with that being said, how much weight a child’s preference is given is determined on a case-by-case basis by the court.

When Child’s Preference Doesn’t Impact Custody or Divorce Cases

However, there are some custody and divorce cases in which the child’s preference does not have any role in the court’s decision. For instance:

1. The child is too young to reasonably express a preference.
2. The child lacks the cognitive ability, intellectual and/or developmental functioning.
3. One parent (either deliberately or incidentally) influences the child’s preference.

Parental Pressure on a Child’s Preference

Minnesota judges are aware of parental influence and pressure. This is part of the reason the statute reads, “…and maturity to express an independent, reliable preference.” (Minnesota Statutes, Chapter 518.17).

As a result, a judge may conclude that a child is not able to make an independent or reliable preference. A judge may come to this conclusion when one parent has repeatedly bad-mouthed the other parent, or gone so far as to instruct the child to express preference for him or her over the other parent. In those circumstances, a judge may hold this kind of behavior against the offending parent when making a final custody determination. 

For other divorce or family law questions, please consult the list to the left or the FAQ page.  If you’re interested in retaining an attorney to help you, please feel free to contact my office for a consultation using the contact information on the left or the contact form on the Majeski Law home page.