I oftentimes get calls from prospective clients asking me if there is a certain age that child reaches wherein the child’s opinion alone is sufficient to change custody. An example of this would be that their child has reached the age of thirteen (13) or fourteen (14) and would now like to live with the non-custodial parent. I am asked if this can be presented to a Judge to transfer custody. Generally, the answer that I give them is that a child’s preference alone is insufficient to modify custody. Minnesota Statue §518.18 gives certain bases for the Court to modify custody and a child’s preference is not one of them.
What Minnesota Statute §518.18 provides is that there needs to be a change of circumstances in the environment of the child and that that change in circumstances has resulted in either (1) endangerment of the child’s physical or emotional health or impairment of the child’s emotional development; (2) the child has been integrated into the environment of the non-custodial parent with the consent of the custodial parent; (3) that the parties agree in writing that the custodial parent agrees in writing to transfer custody to the non-custodial parent; or (4) that there has been a willful and persistent denial or interference of Court-Ordered parenting time by the custodial parent to the non-custodial parent.
In the event the Court does consider modifying custody based on a showing of one of these factors, the Court is then in the position to consider the reasonable preference of a minor child. If it is deemed that the preference of the minor child is not reasonable and/or it has been adversely influenced by the other parent, the Court would likely not consider this as the child’s true preference and/or as a preference that would benefit the minor child. An example of this is a parent who, in an effort to gain the child’s allegiance, showers the child with gifts and/or allows the child the freedom the child may desire but may not be in the child’s best interests. Often, the Court will view this conduct as not being in the best interests of the child and will not consider this as the reasonable preference of a child.
In the event the Court does consider modifying custody for one of the reasons referenced above (e.g. endangerment, integration with consent, etc.) the Court has some options — if the Court wishes to solicit the preference of the child, one of those options would be for the Court to talk to the child in chambers and/or appoint a Guardian ad Litem to speak to the child to illicit the child’s reasonable preference.
The bottom line is that, in my experience, I have not seen that a child’s preference alone is sufficient to modify custody, even when the child reaches a certain age. Certainly the older a child gets, the more strongly a Court will consider that child’s preference; however, getting into Court under a modification of custody would require a showing of one of the above-referenced rationale under Minnesota Statue §518.18 and that Statute does not specifically include the preference of a child at a certain age as one of the bases to open the door to consider a modification of custody.
