Legal Question in Family Law in Minnesota

Re: child custody

Children never get to "decide" which parent they want to live with. Depending on their maturity level, the court will take into account what a child wants and, generally, by the time they are 14 or older, the courts give great weight to the child's wishes. Please contact me if you have any other questions.

Re: child custody

Thank you for your question regarding a child's preference and custody. This is one of the most frequent questions to come accross my desk.

It is commonly assumed that a child is given the right to choose where he or she will live at some specific age. That is simply not true. The law does not ever give this choice to a child -- no matter what his or her age.

A child's preference is one of many factors the court can consider when making an initial custody determination. The child's preference is not determinative, however. It is just one factor among many the court must consider, although the older and more mature the child, the more likely the court is to take the child's preference into account.

Custody modification is another matter. Strictly speaking, custody cannot be modified unless the current arrangement "endangers" the child, or the parties have effectively consented to a de facto change in custody. A child's preference is not a basis for modifying custody.

That being said, when a child is about 15 or older, the child may choose where to live, regardless of court orders, merely because he or she has access to a car, or has friends who drive. Thus, when the child is effectively determining where to live, regardless of court orders, the court will sometimes bow to necessity and modify custody. This will prevent the child from being turned into a "run away" -- because the child is not living with the official, custodial parent.

Short of this somewhat unofficial "exception" in the case of older children, the law is decidedly opposed to ever placing children in a position to choose a parent. It is generally felt that this puts the child in an impossible bind, and can alientate the child from one or both parents. Moreover, most lawyers and judges consider the stated preference of younger children to be highly unreliable, and it is very common to find that a child will tell each parent what they want to hear -- specifically that the child wants to live with which ever parent they are visiting. In other cases, the statement of a strong preference is sometimes a reaction to house rules or discipline the child does not like. The court is often concerned about subtle manipulation of the child's preference, and in some cases finds that it is the child manipulating the parties by using a statement of preference to avoid what may otherwise be sensible restrictions. The court most definitely will not allow the child to "run the show" by relying on the child's preference.

If you have further questions you may feel free to contact me. Good luck, and thank you again for your question.