Can a Child Decide Which Parent to Live With in North Dakota?

When North Dakota courts must decide parental rights and responsibilities in a divorce, they must consider a number of factors relating to the best interests and welfare of the child. Among these factors is "the preference of a mature child." What exactly does that mean? Can a child decide which parent to live with in North Dakota?

When is a Child Mature Enough to Testify Regarding Their Preference?

A child's preference about which parent should have residential responsibility is only one of several "best interests" factors the court must consider. It is also not necessarily the most important factor among the 13 best interest factors. Furthermore, the child's preference may only be considered under certain circumstances. Let's unpack the language of the statute, and take a look at how North Dakota courts have interpreted that language.

i. If the court finds by clear and convincing evidence that a child is of sufficient maturity to make a sound judgment, the court may give substantial weight to the preference of the mature child. The court also shall give due consideration to other factors that may have affected the child’s preference, including whether the child’s preference was based on undesirable or improper influences.

The primary hurdle is to establish that the child has the maturity to make a sound judgment regarding residential responsibility (sometimes called "physical custody"). What is "clear and convincing evidence" of this maturity? This term is actually a legal standard. While not as high a standard as "beyond a reasonable doubt," it is higher than "more likely than not." Essentially, the evidence presented (of the child's maturity, in this case) must produce "a solid conviction or belief as to the allegations sought to be established."

How does the court receive evidence that might produce such a conviction? At the very least, the court will usually interview the minor child in order to get a sense of his or her maturity.

One of the facts considered when evaluating maturity is the child's age. While age is not the sole indicator of a child's maturity or ability to make an intelligent choice, the North Dakota Supreme Court has acknowledged that, as a general rule, the older the child, the more weight to which their preference is entitled. Clark v. Clark, 2006 ND 182, 721 N.W.2d 6.

The North Dakota Supreme Court has also held that "The maturity of the child is a factually driven issue and will depend on the facts and circumstances of the case." Frueh v. Frueh, 2009 ND 155, 771 N.W.2d 593. This means that while age is an important factor to be considered in assessing a child's maturity, it is not the only factor. There are no hard-and-fast rules as to the age at which a child is considered mature enough to testify as to a preference regarding residential responsibility. A court might find a ten year old in one case mature enough to express a preference, but find otherwise regarding a thirteen year old in another case.

How Does a North Dakota Court Consider a Child's Preference?

Assuming the court has found by clear and convincing evidence that a child is mature enough to testify to his or her preference, the court may give substantial weight to the preference of the child. That word, "may," is small, but very important. It gives permission to the court to consider the preference of a mature child, but does not require it to, as it would if the phrase were "..the court shall give substantial weight..." In essence, this means the court has the latitude to give the child's testimony serious consideration, but is in no way bound by it.

The word "shall" does make an appearance in the next sentence: "The court also shall give due consideration to other factors that may have affected the child's preference, including whether the child's preference was based on undesirable and improper influences." This means the court must consider any other factors affecting preference; this is not optional.

A sixteen year old may well prefer to live with dad instead of mom, for instance. But if that preference is because dad doesn't set a curfew and turns a blind eye if beers go missing from the fridge, the court is less likely to honor the child's preference. A child may be old enough to form and express a preference; as most parents understand, though, a child does not always prefer what is best for him or her.

There are also those parents who deliberately act to turn a child against the other parent. If a child has a marked preference for one parent, but the court finds that that parent "poisoned" the child against the other parent, the court may not give much weight to the child's preference.

Parents who are concerned that a child's preference regarding where to live will be given greater weight than the other "best interests factors" will be relieved to learn that this is rarely the case. The North Dakota Supreme Court has articulated that the child's preference is just one of many factors to be considered, and is not usually the one that determines the case. Barstad v. Barstad, 499 N.W.2d 584, 588 (N.D. 1993).

If you have questions about how your child's preference about where to live could affect your custody case, we invite you to contact family law attorney Lesley Foss to schedule a consultation.