Custody, Parenting Time and A Child’s Preference

Minnesota determines custody and parenting time of a child using a standard that decides what custody or parenting time arrangement is in the best interests of the child. Minn. Stat. §518.17 (2017). This blog post will focus on the third factor, “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.” This factor is only one of many. The court may not use one factor to the exclusion of all others, and the court must consider that the factors may be interrelated to the custody and/or parenting time issue.

Age and Preference of a Child

The statute specifies that age of the child is important in deciding if a child may express a preference that the court may rely on. However, the court has never decided what age is old enough to have a preference the court listens to, though it is generally accepted that a 12-year-old is old enough for the court to consider their preference. The age of the child doesn’t matter as much as the maturity of the child. In Pekarek v. Pekarek, N.W.2d 493 (Minn. Ct. App. 1986) an 8-year-old was considered mature enough to give a preference to the court. The court determined that a child 6-years-old or younger is not old enough to express their preference even if it is claimed that they are mature enough. Sucher v. Sucher, 416 N.W.2d 182 (Minn. Ct. App.1987).

Regardless of the age and maturity of a child, Minn. Stat. §518.17(3) specifies that the preference given by the child must be “reasonable,” “independent,” and “reliable.” Under this prong, the court has held in an unpublished case that a child’s preference to reside with one parent over another because that parent is more lenient is not determined to be reasonable. Nelson v. Nelson, No. A06-558, 2006 Minn. App. Unpub. LEXIS 1189 (Minn. Ct. App. Oct. 24, 2006). Coercion by a parent is not tolerated. In the Nelson case, the mother had assisted the children in writing letters to the court stating their preference to live with the mother. The court found that the preferences were not reasonable. Id.

Ross decision

The court tends to give more weight to the preference of an older teenager when determining custody. Ross v. Ross, 477 N.W.2d 753, 756 (Minn. Ct. App. 1991). If the court were to disregard the teenager’s preference there is the “fear that she [will feel like she has] been subjected to injustice and unnecessary harshness, which might leave scars upon her disposition or character.” State ex rel Feeley v. Williams, 222 N.W.2d 927, 928 (Minn. 1929).

Parental Alienation

The final issue that is looked at when a child expresses their preference of which parent to live with is whether or not there has been alienation on the part of one of the parents. In the unpublished case Tran v. Tran, No. A00-2142, 2010 Minn. App. Unpub. LEXIS 612 at *3 (Minn. Ct. App. June 29, 2010), the evaluator made a recommendation based upon both the alienation by the father and the other causes for alienation by the mother. The court looks at the alienation in light of the entire situation.

When the court goes against the expressed preference of a child that they have found to be of the right age and maturity, the court must give a sufficient reason for ignoring the child’s preference. Steinke v. Steinke, 428 N.W.2d 579 (Minn. Ct. App. 1988).

If you have Divorce and Family Law questions, please contact the Family Law experts at Minneapolis based Lake Harriet Law Office at 612-750-4843.

Published On: October 24, 2017Categories: Family Law Updates

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