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As adults, we tend to take it for granted that we have control over our life decisions, both minor (like what to make for dinner) and major (where we will live, and with whom). As parents, we make these decisions for our children. But what happens when parents are getting divorced or moving into separate households? Legal custody proceedings can determine which parent has the right to make major life decisions for a child. But does the child get any input into custody decisions, including which parent they will live with?
The answer, as with so many legal questions, is “it depends.”
In Minnesota, as in other states, courts decide child custody based on what is in the best interests of the child. Minnesota courts must consider all the factors listed in the statute, which was revised and updated in 2015. Those factors include “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.”
So, what exactly does that mean? Is there a specific age at which a court must consider a child’s choice regarding custody and living arrangements? No. In fact, when the “best interests” statute was revised, this part of the statute was updated to add references to ability and maturity as well as age. In other words, a court might consider the preferences of an eight year old under some circumstances, and decline to consider the preferences of a twelve year old under others.
In general, though, the older a child is, the more likely a court is to consider their preference. Minnesota courts rarely take into account the custody preference of a child under the age of seven, and usually deem teenagers mature enough to express a preference.
The child’s preference regarding custody must be a “reasonable” one, although the statute doesn’t define what that is. If a child prefers to stay with one parent because the parent lets them stay up late, eat whatever they want, and smoke pot, that’s probably not a reasonable preference. If the child wants to stay with a parent because the parent is home more, cooks regular meals, and helps them with homework, a court would likely find that preference reasonable.
The statute also states that the preference must be an “independent, reliable” one. “Independent” means that the preference is one that the child arrived at on their own—they were not coached, threatened, or bribed into expressing a certain preference. “Reliable” means that the child is consistent in their preference; it doesn’t flip-flop back and forth. In Minnesota, there was a case in the early 2000’s in which the court found that the child was “unduly influenced” by a parent and so they declined to accept the child’s preference.
You might be reading this and thinking that your child is of suitable ability, age and maturity to express their independent and reliable reasonable preference to the court. Or your child may be begging you to let them have input into the custody decision. Now, how do they communicate that to the court?
Ordinarily, when someone needs to share information with the court in a lawsuit, they are called as a witness in a hearing. For obvious reasons, that is rarely appropriate in a custody matter. Courts are extremely reluctant to have children testify and to put them in the middle of their parents’ dispute. Most parents don’t want that, either.
One of the best ways that a child can have a say in the custody matter is by using “child-inclusive” mediation. There are several mediators that will speak privately with a child or children in order to give the parents an idea of the child’s preference at a future mediation. In some cases, it is a separate mediator assigned just to meet with the child and then act as their voice in the subsequent mediation between the parents. It has been very successful even when the children are as young as 8 years old in giving them a voice.
One way that courts can evaluate a child’s maturity and to learn of the child’s custody preferences is to schedule an “in camera” interview between the judge and the child. That simply means that the judge will speak privately with the child in the judge’s chambers. The idea is that since the parents are not present, the child can speak freely without fear of upsetting a parent. However, it is complicated by the fact that in addition to a judge, both parents probably have attorneys who are present and can fill in their client after the meeting with what was said. The meetings are also recorded with a court reporter also being present. So although the law may allow an “in camera” interview, the judges are careful about when to grant them.
Sometimes, a guardian ad litem will be appointed in the case but this option is disappearing fast and is only used when there are specific reasonable concerns about child abuse. A guardian ad litem’s (GAL) role is to represent the child’s interest in the legal matter that affects them, which includes making recommendations to the court regarding child custody and parenting time. In addition to speaking directly with the child, a GAL may examine school and medical records and speak to adults who regularly interact with the child in formulating their recommendation. The reason for the decline in being able to get a GAL in family cases is simply lack of available GALs due to funding cuts.
Remember that even if your child’s preference regarding custody is communicated to the judge in your child custody case, it doesn’t mean that your child’s wishes will be honored. The judge must take into account all of the best interest factors—not just the child’s choice.
The information above applies when the court is making a decision regarding custody. However, you don’t need to put that decision in a judge’s hands if you and the other parent can reach agreement regarding custody arrangements.
Reaching an agreement with your co-parent is usually preferable to letting the court decide how you will handle custody. When you negotiate your own agreement, you have the power to be as creative and as flexible as you need to, taking into account your child’s activities, your work schedules, and other factors—like your child’s preference.
Of course, if it were easy to negotiate a child custody and parenting time arrangement on your own, everyone would do it. You may need the help of an experienced Minnesota family law attorney, or to work with a neutral mediator in the family mediation process.
To learn more about Minnesota child custody, please contact Mundahl Law to schedule a consultation.