The Child’s Voice in Custody Cases
When someone asks, “when can a child decide which parent to live with?” we typically hear, “when the child is 12 or 13 years old.” However, that’s not true. Unfortunately, this is a common misconception, and has serious implications for separated, divorcing and divorced parents.
In regards to the question regarding when a child can decide which parent to live with in Minnesota, the short answer is, “Never.” In Minnesota, contested custody matters involving minors are decided by a judge. Minnesota judges’ decide child custody based on “the best interests of the child.” The best interests of the child standard is a set of 12 interrelated factors that the court has to consider and evaluate when determining a child custody order in Minnesota.
However, just because a child isn’t allowed to determine custody in Minnesota, doesn’t mean s/he doesn’t have a voice in the matter. The question “When Can a Child Decide Which Parent to Live With?” concerns the legal issue of a child’s preference, and one of the 12 factors in the child’s best interests standard is the 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).
Impact of Child’s Preference
Therefore, although a child can’t decide custody, and instead, a child’s preference is one of many considerations, a child’s preference can have an impact. Although there is no rigidly defined cutoff, typically 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.
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.
This happens because in cases where the child is 16 or older, judges are aware that no matter what they rule, the child is very likely to “vote with his/her feet” in regards to which parent s/he lives with. As a result, once a child has the ability to drive and his/her own vehicle, it can become more difficult to enforce a custody and/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 Influence a Minnesota Custody or Divorce Proceeding
However, by law there are some custody and divorce cases, where the child’s preference will not have any role in the Court’s final decision. For instance, Minnesota judges will not consider a 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
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).
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.