“The Reasonable Preference of the Child” in Minnesota Custody Cases

“The Reasonable Prefere…

As we've discussed in recent blog posts, Minnesota custody law, which is based on the “best interests of the child,” has recently updated the factors used to define a child's “best interests”, including greater focus on the needs of the child (including special needs) rather than the wishes of the parents.

What about the wishes of the child? Those of us who are parents know that what a child wants is not always what is best for him or her (just ask the average six year old what he'd like for dinner). It's one thing for a child to declare he wants marshmallows and corn chips for a meal. It's another entirely for a child to want to live with one parent because that parent gives him more gifts, or lets him do what he wants with little supervision. How exactly do a child's preferences factor into a Minnesota custody determination?

How the Minnesota “Reasonable Preference” Factor Has Changed

As with much of the Minnesota “best interests” statute, the factor dealing with children's preferences as to custody has changed. In the statute prior to amendment, this factor read, “the reasonable preference of the child, if the court deems the child to be of sufficient age to express preference.” As amended, the statute reads, “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.”

At first glance, the two phrases seem very similar. But let's take a look at what's been added to the new language. The older version of the statute states that the court shall take into account the child's reasonable preference as to custody if the court deems the child to be old enough to express such a preference. The amended language also requires the court to take into account the child's ability and maturity to express not just a preference, but an “independent, reliable” one.

One of the rules of interpreting statutes is that every part of a statute is intended to have meaning. In other words, legislators are presumed not to throw words into the laws they write just for the sake of sounding important (really!). If a word is added to a law, therefore, it is added for a reason.

In this case, it's reasonable to assume that the legislature recognized that a child's age is not the only factor that determines whether he or she is able to make good decisions. The change in the statute's language gives the court the flexibility to consider a child's maturity and abilities, as well as his or her age, when deciding whether to take into account the child's preferences regarding custody.

The other notable change in the language is that courts are to consider a child's “independent, reliable” preference. The use of the word “independent” suggests the importance of the preference coming from the child, and not being influenced by a parent or other party. “Reliable” points to the need for the preference to be a consistent one, not something that changes on a whim when one parent imposes a curfew or the other buys a present for the child.

What “Reasonable Preference” Means for Parents

Since the changes to the statute only went into effect on August 1, 2015, it's a little early to tell how the amendment of this factor will affect families in real life. In general, though, it looks like the change will be a good one. The new language gives Minnesota courts the flexibility to evaluate much more of what goes into a child's expressed preference about custody, rather than just considering the child's age and what they say they want. This should provide a measure of comfort for parents who worry that the other parent may somehow “buy” the child's allegiance.

Please contact us at Mundahl Law with any questions you have about how courts deal with children's preferences in custody, or about any of the other Minnesota best interests factors and how they could affect your custody case. We look forward to working with you.


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