Photo by Juliane Liebermann

A common question asked by parents during a divorce or custody matter in Minnesota is “when can a child decide which parent he or she wants to live with?”  The short answer is “never.”  The ultimate decision is never up to the child; in Minnesota, the courts are charged with deciding child custody and parenting time based on the “best interests of the child.”

The “best interests” standard is set forth in Minnesota Statute 518.17 and includes 12 factors for the judge to consider.  Each of the 12 factors will be given different weight depending on your case’s unique circumstances.

One of the 12 best interests factors requires consideration of “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.”  Therefore, judges are instructed to at least consider a child’s preference.

There is no definitive age where a child will be deemed to be of “sufficient age.”  However, in very general terms, when a child is around the age of 12, their preference will usually be given some weight by judges.  In most cases, the older the child is, the more influence their preference will have on the judge’s “best interests” determination.  However, courts determine how much weight to give a child’s preference on a case-by-case basis and will also consider the child’s maturity.  Children develop at different rates and family situations are each unique, so not every situation can be treated the same.

A child’s preference also has to be “independent” and “reliable.”  If the judge concludes that a parent is improperly influencing or pressuring the child, the child’s preference for the that parent will be given little-to-no weight.  Improper influence and pressure can come in many forms.  For example, a parent who speaks bad about the other parent in front of the child or involves the child in the parents’ conflict will be seen as alienating the other parent and thereby unduly influencing the child’s preference.  This type of behavior not only decreases the weight given to the child’s preference, but can also weigh against the offending parent with respect to other “best interests” factors when the judge makes the final custody determination.

If you have questions about child custody or divorce, please reach out to us to schedule a consultation.