Legal Question in Family Law in Minnesota

Re: custody

For whom? By whom?

Re: custody

The answer depends on the current custody situation.

As lawyers we are often asked when a child can decide where they will live. Often non-custodial parents count on being able to change custody when their children decide that they wish to live with them. The short answer to the question is that, technically, children never have the final say with regard to custody. Instead, children who are deemed of suitable age and maturity by a court to express a preference my do so, but their opinions are just one factor among many that a court must consider.

However, case law has given some added strength to the desires of children with regard to custody. In the Minnesota Court of Appeals case Ross v. Ross, 477 N.W.2d 753 (Minn.App. 1991), the court states that the preference of an "older teenage child" can be compelling. Specifically, the court stated that an older child's desires should be considered as an "overwhelming consideration" with regard to custody placements. The court does not specify an age where the child's desires become an "overwhelming consideration." However, most courts appear to only give great weight to children who are approaching the age of emancipation or, younger children, if their desires also lad to the possibility of conflict in the current custodial home or the thereat that the child m ay run away from that home. As some district court Judges have opined, at some age children may begin to vote with their feet.

Ultimately, although a Court may give greater weight to the desires of an older child, that preference is still not dispositive and the court must still analyze whether there has been a threshold showing for a change of custody such as endangerment and whether the change of custody is in the child's best interests. It is also critical to note that such stated preferences of a child will also be analyzed to determine if the stated preference is the product of manipulation by a non-custodial parent.

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