When Do Kids Get to Decide Who They Want to Live With?
I am asked this question often: “How old does my child have to be to decide who they want to live with?” Parents of pre-teens or teenagers going through divorce or post-decree changes in parenting time schedules often want to know when the child’s opinion about schedules or living arrangements becomes valid. Some people believe that there is a magic age when the court will finally listen to what the child is saying or decide issues based on the child’s opinion. However, in family court, there just isn’t an easy answer to that question.
Minn. Stat. 518.17 lists the “best interest” factors that a court must use to make decisions related to custody and parenting time. There are 12 factors and “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” is only one of them. So, once a child is of sufficient “maturity” to express a preference, a court can consider that preference, but the child’s preference cannot be considered in a vacuum without consideration of all the other factors. In fact, the statute states “[t]he court may not use one factor to the exclusion of all others, and the court shall consider that the factors may be interrelated.”
At one point in my career, I used to hear that age 14 is when a child is considered to be a competent witness and so children age 14 and over are considered “old enough” for this factor to apply in family court. However, it turns out Minn. Stat. 595.02 states that a child younger than 10 can serve as a competent witness unless “the court finds that the child lacks the capacity to remember or to relate truthfully facts respecting which the child is examined.” So, when it comes to listening to children in court, there really doesn’t seem to be any specific age that triggers their competency.
Family court tends to have the policy that children do not belong in court and I agree with this philosophy. If I see kids waiting in the hallways in family court I always cringe just a little because kids shouldn’t be swept up in the drama of court. In all my years practicing family law, I’ve never had a child testify in court and only once saw another attorney try to use the written statements of a child in court against the other party. It simply isn’t done. Judges don’t like it. Even soliciting the child’s opinion through their written statements is absolutely seen as taboo in most cases.
I spend a lot of time in juvenile court these days and I am struck by the different philosophy there. In a child protection case, a child over the age of 10 absolutely has a say in what happens in court. The older children often have their own attorney assigned to them. Guardians ad Litem, social workers, and attorneys visit the child at home and ask them their opinion on multiple different issues, including time and duration of visits, the logistics of phone calls, frequency of visits, and anything else directly affecting the child. I’m not saying that the Judge in juvenile court is always going to do what the child wants, but the child is asked their opinion and believes their opinion matters.
Divorce is certainly not the same environment as child protection, but I do think letting kids have a say is not always ill advised. In family court, a child’s opinion can be considered in other ways through the child’s conversations with a custody evaluator or other professional involved with the family, or in rare cases, through the recommendations of a guardian ad litem. Perhaps this hesitancy to listen to kids’ opinions in family court will eventually change incrementally. In recent years “child focused” mediation has become a more widely referenced process. But to answer the original question, until they turn 18, a child really never gets to decide who they want to live with, but their opinion can be considered related to all other factors in the case.