Can Children Express Preference in Minnesota Custody Proceedings?

Can children make their own custody choices? Courts in many states are required to listen not only to the parent’s desires for custody but also to the child’s wishes.

By , Attorney · Cooley Law School
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Child custody decisions are often the most difficult for separating parents. Parents have their own opinions on custody, and sometimes children have a preference as well. Courts in many states are required to listen not only to the parent's desires for custody but also to the child's wishes.

This article will explain how a child's preference affects custody in Minnesota. If you have additional questions after reading this article, you should consult an attorney who is well-versed in Minnesota child custody laws.

Overview of Custody Decisions in Minnesota

While it's usually best for parents to agree on their children's custody arrangements, not all parents can do so. In these cases, courts must determine custody.

Minnesota judges have a wide range of factors they must consider when deciding custody, including the following:

  • each parent's wishes as to custody
  • which parent has been the child's primary caretaker
  • the child's relationship with each parent
  • the child's interactions with the parents, siblings, and any other person who may affect the child's best interests
  • the child's adjustment to home, school, and community
  • the stability of the existing and proposed custodial homes
  • each parent's mental and physical health
  • the child's mental and physical health, including special needs
  • each parent's ability to give the child love, affection, and guidance
  • each parent's ability to continue the child's education and religious upbringing
  • the benefit to the child in maximizing parenting time with both parents and the detriment to the child in limiting parent time with either parent
  • the child's cultural background
  • the willingness and ability of the parents to cooperate in the rearing of their child
  • whether either parent has a history of domestic abuse, and
  • the child's reasonable preference, if the child is of sufficient age to express a preference. (Minn. Stat. Ann. §518.17 (1).)

When Will the Court Consider a Child's Preference?

The court will consider the child's preference if the judge believes the child is mature enough to express a reasonable, independent, and reliable preference. There's no specific age when a child is old enough to have a custodial preference, but it's somewhat rare for a court to consider the opinion of a child less than seven years old. It's not unusual for an eight-year-old child to have an opinion that impacts the custody decision. Teenagers are almost always mature enough to express a reasonable preference that factors into a custody determination.

Judges frequently give the custodial preferences of older children more weight than those of younger children. When deciding how much weight to give a child's opinion, courts also pay attention to the reasons behind the preference. Superficial reasons like wanting to live with the more generous parent won't carry much weight in the judge's final decision. The child's preference is never the determining factor by itself; the court will weigh the preference against all the other custodial factors.

Judges are careful to ensure that a child's stated preference is a real preference and not tainted by a parent's manipulation. The court will disregard a child's preference if it appears that it's the result of parental pressure.

Do Children Have to Testify About Their Custodial Preferences in Court?

Minnesota judges are reluctant to allow children to testify about custodial preferences in the courtroom. Children can suffer psychological harm if the court places them in a position where they must state a preference between two parents sitting in front of them.

Instead, most judges prefer to interview children in court chambers, outside of their parents' presence. The court must allow the parents' attorneys to be present for the interview. (Minn. Stat. Ann. § 518.166.)

The attorneys can submit a list of questions for the judge to ask, and some judges may allow the attorneys to question the child directly. For in-chambers interviews, a court reporter must make a record of the interview, unless the parents specifically permit it not to be recorded.

In some disputed custody cases, the court will appoint an investigator to speak with anyone who has information about the child and potential custody arrangements. The investigator compiles an extensive report for the judge that includes the child's desired custody arrangement. This way, the judge hears the child's preference without the child ever having to appear in court. (Minn. Stat. Ann. § 518.167.)

Alternatively, Minnesota courts may allow a professional like a custody evaluator or mental health worker to speak with the child regarding the child's custodial preference. The professional submits a report to the judge about conversations with the child. The parents' attorneys can also question the professional in court about the child's wishes.


If you have additional questions about the effect of children's custodial preferences, contact a Minnesota family law attorney for help.

Visit the Minnesota Judicial Branch website for an overview, forms, and other resources on child custody and parenting time.

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