I often get asked by divorced or separated parents, at what age their child can decide which parent they live with. It’s a fair question; but one which unfortunately has no easy answer.
Minnesota lawmakers have not created a law which gives children the right to choose which home they live in. So, the logical and easy answer to the aforementioned question is usually, “age 18”; when the child is emancipated and no longer subject to the jurisdiction of the Family Court. That’s not satisfactory answer.
The answer is neither accurate nor fair. That’s because a myriad of factors go into a Family Court’s determination of where a child lives. Of note: included in those factors, is the child’s preference! In Minnesota, trial courts are required to consider a child’s ‘best interests’ when deciding custody and parenting time.
‘Best interests’ is a legal term, which Minnesota lawmakers have carefully defined as a set of 12 factors designed to measure a child’s needs, and how those needs can be served. See Minn. Stat. §518.17 subd. 1(a). Interestingly enough, included among those 12 factors, is, the child’s reasonable preference.
So, it’s settled law in Minnesota that it’s important for a trial court to consider the wishes of a child in making a custody determination. Note, however, that the child’s preference is conditioned upon it being reasonable. And also, when considering a child’s preference, the trial court must also determine whether that child is of sufficient:
- ability
- age
- maturity; and
- can express an independent, reliable preference.
Normally, Minnesota trial courts give “overwhelming consideration” to the preference of an older teenage child in determining custody. See Ross v. Ross 477 N.W.2d 753, 756 (Minn. Ct. App. 1991). But, that weight is limited “to the extent that it might bear on the child’s emotional well-being.” For example, in a case where the child is subject to constant pressure from a parent to state a preference, courts are not inclined to give weight to that child’s preference. Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 691 (Minn. Ct. App. 1989). When there has been inappropriate influence by a parent, the child’s preference is not determinative of the child’s best interests.
In a 2018 decision, the Minnesota Court of Appeals upheld a trial court’s decision to decline to consider a 15 year old’s preference to live with his Mother, when the trial court did not consider the child to be of sufficient ability, age and maturity to express an independent, reliable presence. In large part, because the child was unduly influenced by Mother, when Mother made several attempts to influence the child’s opinion.
A parent wondering at what age their child can declare which home he or she will live in, deserves a better answer than ‘18’. As an alternative, that parent would do well to consider the circumstances surrounding their child’s stated preference, before deciding whether that preference will given weight by a Minnesota Family Court. For questions related to a child’s preference, or questions related to child custody and parenting time, please contact the attorneys at Beyer & Simonson.
Meet Tim Simonson
Tim has been practicing for more than twenty (20) years now, He's handled divorce, child support, child custody, third party and grandparent rights, domestic abuse, parenting time, and many other areas of family law. He always enjoys the chance to meet people and see whether he can help find solutions to their legal problems.
Contact Beyer & Simonson
If you are facing divorce and any of the divorce-related issues such as spousal maintenance, child support, child custody, property division, or domestic abuse matters, you need our experienced Minneapolis divorce attorneys to help you. Contact Beyer & Simonson in Edina, Minnesota today at (952) 303-6007.
