But My Child Wants To Live With Me

Jun 6, 2010

After a divorce is final and the custody arrangements are made, a child may find himself unhappy and wish to move in with the noncustodial parent. Of course, the noncustodial parent may be sympathetic to the child’s wishes and move for a change in custody. However, there are several hurdles that the moving parent must overcome in order to be successful in this motion. The child’s wishes alone will not be enough for the court to grant the change.
First, in an affidavit, the parent must relate facts that if true, would be sufficient to warrant a modification of custody.  Custody may be modified based upon agreement of the parties, integration, or endangerment. Second, at an evidentiary hearing, they must establish the truth of the facts asserted in the affidavit. There are four main elements that the noncustodial parent must establish in their affidavit and prove at the evidentiary hearing for a modification based upon endangerment. These elements are:
  1. A change in the circumstances of the child or custodian;
  2. That a modification would serve the best interests of the child;
  3. That the child’s present environment endangers her physical or emotional health or emotional development; and
  4. That the harm to the child likely to be caused by the change of environment is outweighed by the advantage of change.
The change in circumstances must be significant and must have occurred since the original custody order; it cannot be a continuation of conditions existing prior to the order. The best interests of the child are determined according to the factors listed in Minn.Stat. § 518.17 (2009). Endangerment requires a showing of a “significant degree of danger,” but the danger may be purely to emotional development. The balance of harms may sometimes be implicit in the other factors.
In Minnesota, the wishes of a child are taken into account when determining modification of custody. However preferences alone do not provide sufficient evidence of endangerment to mandate a hearing. The moving party must have specific, credible evidence, not vague, conclusory statements, to show child endangerment. The party must allege an actual adverse affect on the child’s emotional health or development. Allegations of emotional abuse should be specific to rise to the level that may constitute sufficient endangerment. An alleged single incident of borderline abuse or neglect has been held not to constitute sufficient endangerment to warrant a custody modification.
Evidence sufficient to show endangerment can include that an older teenage child (1) has strong preferences to live with the non-custodial parent; (2) has relocated himself or herself to the non-custodial parent’s home; and (3) has evidence of distress while living with the custodial parent as shown by school problems.
Minnesota law rests on a presumption that stability of custody is in a child’s best interests. In cases involving teenagers’ preferences, Minnesota has generally endorsed the child’s preference when the child sought to remain in his or her present living arrangement or to return to a previous long-term custodial arrangement. Where a child has never resided for any length of time with a noncustodial parent and preference is the grounds for the transfer, there must be such severe endangerment as a result of the current custody that the other arrangement would present less risk.
A child’s choice may be found foolish if there are objectionable influences such as undue influence by the noncustodial parent or unfounded beliefs by the child as to that parent’s leniency. However, the possibility of objectionable influences does little to diminish the weight of an older teenaged child’s preference.
A child’s preference is only one factor among many that a court uses to assess the best interests of a child. Although it is important to consider the wishes of a child of suitable age, it is seldom in a child’s best interest to place upon him the entire burden of such a difficult decision as custody. There must be actual evidence of a current danger to the child so as to require an evidentiary hearing.
So before a noncustodial parent runs out to file an affidavit, the situation must be examined from all angles to ensure that there is endangerment to the child beyond merely the child’s wishes and that a move would truly be in the best interest of the child.
Geibe v. Geibe, 571 N.W.2d 774, 777 (Minn. App., 1997).
Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App., 1991).
Minn.Stat. § 518.17 (2009).