Child Preference In Custody

Part II: Does A Child’s Preference On Custody Matter?

July 22, 2021

In Part I of this blog, we discussed how, in a custody case, a child’s preference impacts the “best interests” factors, and the importance of the child’s age and maturity. In Part II, we’ll discuss how “improper influences” on the child’s preference can reduce the court’s reliance on the preference, the weight the court places on the preference, and how to present evidence of a child’s preference in court.

Improper Influence

In the “best interests factors” of N.D.C.C. § 14-09-06.2 (which is nearly the exclusive source of the court’s consideration in custody cases), the law states that a child’s preference can be ignored or discounted when “the child’s preference [is] based on undesirable or improper influences.”

Therefore, if the judge finds that a mature child’s preference to live with one parent is tainted by some kind of undesirable or improper influence, the impact of the preference is reduced, or even nonexistent. This “improper influence” might be a number of things, including pressure or emotional manipulation from a parent or other family member, the unhealthy ambitions of the child, etc.

For example, in Jordana v. Corley, two children (ages 10 and 13) stated a desire to continue living with their mother, with whom they’d lived exclusively for the preceding five years. However, the children’s preference was strongly influenced by their mother telling them that she would commit suicide if she were not granted custody. The court decided not to give much weight to the children’s preference as a result and awarded custody to the father.

In McDonough v. Murphy, the mother had custody of a 13-year-old child who now desired to live with his father. The child had no disciplinary or behavioral issues at school, performed well academically, and was very responsible, mature, and well-adjusted. However, the father had the child secretly evaluated by a psychologist in an attempt to gain an advantage in the custody case and to potentially influence the child to want to live with him. Although the court granted custody to the father due to other facts, it warned that this type of conduct can significantly taint the court’s reliance on a child’s stated preference, enough so to warrant ignoring the preference altogether.

If a child’s preference is motivated by goals and ambitions which undermine the significance of the preference, like the desire for the latest gaming console at one parent’s home, a lack of rules, structure, or chores in one parent’s home, etc., the court can similarly discount or ignore the preference.

How Much “Weight” Will the Court Assign to the Child’s Preference?

As stated in Part I of this blog, generally, a child’s preference is entitled to more weight as he or she grows older. This weight can grow to the point where it becomes the overwhelming consideration of the court, to the near exclusion of the other best interests factors. The North Dakota Supreme Court has stated: “it would be foolhardy to ignore the input of an older teenager’s firmly held preference in the resolution of his or her custody.” For younger, but still “mature” children, the preference can be significant, but remains only one factor to consider and is not usually solely determinative. The amount of weight given to the preference can hinge on the maturity, intelligence, and consistency of the child.

In a typical custody modification case, a parent must prove 1) that a material change in circumstances has occurred, and 2) that the modification is in the child’s best interests. A child’s preference can impact both of these analyses. We’ve primarily referred to the preference being one of the best interests factors, but the North Dakota Supreme Court has made it clear that when a child’s preference to live with a parent changes, this can be significant in deciding whether a “material change in circumstances” has occurred.

Presenting Evidence of the Preference

Presenting evidence of a child’s preference raises unique and sensitive considerations. Calling a child to testify (especially a younger child) regarding which parent he/she wants to live with, while in open court, in the presence of both parents, and with all the fear, insecurity, and intimidation which might accompany the setting, can be traumatic or emotionally harmful to the child. Understanding when, and under what circumstances, this is appropriate can be difficult. But if a child doesn’t testify, how can the evidence be presented? Surely a parent cannot simply testify on a child’s preference, since this is hearsay and suspiciously self-serving?

If a child does not testify on his/her preference (and preference isn’t demonstrated in other ways), the court can ignore it completely. If a parent wants the preference to be considered, the parent must call the child to testify. An affidavit alone will not suffice.

However, a parent can have the child interviewed by a guardian ad litem, and present evidence of the preference through the guardian ad litem’s report and testimony, which the court can properly rely upon in assessing preference. The court can similarly use the evaluation or testimony of a custody investigator. If the court relies on evidence of preference from a guardian ad litem or custody investigator, it can even refuse to allow the child to testify (although frowned upon, refusing to allow mature children to testify is not “reversible error,” per se). However, the judge should at least “interview” the child first to determine whether the child is mature, whether the child’s testimony is tainted or improperly influenced, whether and to what extent the act of testifying would be detrimental to the child, etc.

An alternative to courtroom testimony is presented in North Dakota Rule of Court 8.13, which allows a judge to interview a child “in chambers” (outside of the intimidating courtroom, in a smaller and more comfortable setting like an office or conference room), if both parents consent. If so, neither parent is present, only the judge and the attorneys, and a record is made. The judge can ask the child questions in an informal and friendly manner and can allow or prevent the attorneys to do the same (but the attorneys must be allowed to be present). In this setting, it can be emotionally and psychologically easier for a child to share a preference with the judge.

If a child is called to testify in open court, which may be unavoidable in some situations, generally the court will carefully control the extent to which a child is examined, to protect the child from unnecessary trauma. A party can refer the judge to North Dakota Rule of Evidence 611(a)(3) in furtherance of that goal.


If you have questions regarding this topic, then seek the advice of a family law attorney. Contact the SW&L family law team at 701-297-2890 or email us.

The information contained in this article and on this website is for informational purposes only. Do not rely on the information on this website as legal advice.