Legal Question in Family Law in Minnesota

A child never gets to make that decision until they are 18. Instead, court orders must be followed unless or until they are modified by a new court order. They may be modified if the change is determined to be in the child's best interests. As part of that process, the court will consider the desires of a child that is of suitable age and maturity. As the child matures, the more persuasive their opinion may be, but in the end, the court must consider all factors when rendering its decision.

I just reviewed your question regarding the age at which a child can express a preference. Before providing a complete answer, I would want to know whether custody has already been determined, or whether you are interested in modifying custody.

If custody has not yet been determined, and you are in the midst of a divorce proceeding, for example, then the child's preference is one of roughly a dozen factors the court will consider when deciding the issue of custody. The child's preference will not be determinative, and how much weight the court gives to the child's preference will depend on his or her ability to responsibly express his or her desires. That being said, you should be aware that the Court rarely asks a child, "where do you want to live?", since this puts the child squarely in the middle of the custody dispute. Further, under no circumstances should you obtain a statement from the child, or advise the court, "my child said he/she wants to live...." That would be considered highly inappropriate. The court will usually attempt to ascertain the child's preference indirectly, often through the observations of a social worker or psychologist conducting a custody evaluation. In some instances the court will interview a child in chambers, depending on the nature of the case, the age of the child, and other factors. As a general rule, the older a child, the more "weight" the child's preference will be given, since older children are more likely to "vote with their feet," regardless of what the court may order.

If custody has already been determined, then your question is whether custody can be modified if the child expresses a desire to live with the other parent. This involves an entirely different set of legal issues. First, custody cannot be modified within one year of a divorce, unless there is evidence of endangerment. (If there was a previous motion to modify custody, then you have to wait two years to bring another motion -- unless there is endangerment). Second, if you are seeking a modification of custody, you must first show that the child's well being and/or development is endangered by the current arrangement, or that the child has been "integrated" into your home with the custodial parent's consent (which basically means the parties have ignored the custody order and the child is living with the non-custodial parent). A child's preference is not usually relevant here. The child's preference would only become relevant if it is first decided there is a reason to modify custody, and if so, the court would then consider the child's preference, in addition to the other dozen factors, to determine who should have custody. That being said, there is some authority for the proposition that an older child's preference can provide grounds for a modification of custody, but those cases have usually involved children who are old enough to move between their parent's home, regardless of a court order, since either the child can drive, or has friends who can drive.

Your question is asked frequently, and it is commonly believed that a child can choose where he/she will live at some predetermined age. This "common knowledge" is inaccurate. There are no simple, easily defined rules that can be looked at to determine custody. Custody cases are heavily dependent on a wide variety of facts, and cases are often determined not only by the facts, but by the manner in which the case is developed and presented, among other things.

Good luck.