Written by attorney Eric Carlisle Nelson

At What Age May the Child Decide Where He Wants to Live, in a Minnesota Divorce or Custody Case?

In Minnesota, there is no particular age at which a child gets to decide which parent he wants to live with. Generally, the older the child, the more weight the child’s preference carries, whether in the initial custody determination or in the context of a motion to modify custody. [1] Still, the child’s preference alone is an insufficient basis for modification of custody. [2] There must be a showing of endangerment, at least on an emotional level, in order to modify custody. [3] The child’s preference is an important factor and often a sine qua non of a showing of endangerment. Footnotes: 1. See Ross v. Ross, 477 N.W.2d 753, 756 (Minn.Ct.App. 1991) [citing State ex rel. Feeley v. Williams, 222 N.W.2d 927, 928 (Minn. 1929) (preference of 12½-year-old given great weight in maintaining her custody with aunt and uncle)]. 2. Geibe v. Geibe, 571 N.W.2d 774 (Minn.Ct.App. 1997) (motion for modification of custody denied without a hearing despite 17-year-old’s preference to change custody). 3. Harkema v. Harkema, 474 N.W.2d 10, 14 (Minn.Ct.App. 1991) (reversing trial court’s denial of evidentiary hearing in case involving emotional abuse) (citation omitted).

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