Does North Dakota Consider A Child’s Preference?

In North Dakota custody cases, when making a determination as to where a child should live, a district court will try to do what is in the best interests of the child. While what is best for the child may be subjective, the factors the Court will consider are not i.e., there is a definitive list of factors the Court will consider when making this decision. These factors are found in the North Dakota Century Code at Section 14-09-06.2. This statute says the Court shall consider, among other factors: “the preference of a mature child.” So, is there an age at which a child can state this preference and get to live where they want?

Can A Child State His Or Her Preference To A Judge In North Dakota?

First, the Court needs to determine if they can even hear the preference of a child. Generally, a district court has wide discretion regarding the examination of witnesses, and, under appropriate circumstances, when to refuse to allow certain witnesses to testify. Regarding child custody actions specifically, the Supreme Court of North Dakota has stated the child must be of “sufficient intelligence, understanding, and experience to express a preference” in order to be able to testify. As such, a Court typically will, at a minimum, interview the child to make this assessment. And, this also means there is no particular age at which a child automatically can or cannot testify regarding their preference in North Dakota. It will depend completely on the judge’s impression of the child when considering these things. So, if allowed to testify, does the Court really listen to what the child has to say?

How Much Weight Is A Child’s Preference Given In North Dakota?

The North Dakota Century Code referenced at the beginning of this article states that, if the Court finds by clear and convincing evidence that the child is of sufficient maturity to make a sound judgment, the Court “may give substantial weight to the preference of the mature child.” The Supreme Court has also said things like: “the preference of the children can be an important factor to consider when determining the best interests of the child,” and, “the child’s preference is entitled to more weight as he or she grows older.”

When reading these things you may think that the child, especially an older child, has a lot of say in where they should be living after a custody action. While the Court can give substantial weight to the preference of a child, the use of the word “may” in the quotation used above, also gives the Court the ability to discount the child’s preference when appropriate.

When listening to a child’s preference, the Court will be looking out for improper influences given the fact the child’s preference may be motivated by goals and ambitions which undermine the significance of that preference. For instance, if Junior is saying that he wants to live with Mom because she lets him stay up and watch Roseanne with her and eat Skittles all night, the child’s preference will probably not be given as much weight as a contemporary who says he wants to live with Mom because of the structure and care she provides at her home.

Improper influences can also take the form of a parent who engages in parental alienation and brainwashes a child to say certain things to affect the custody action. There are times that parents will try to convince the child the opposing party is unjustifiably bad or make promises to the child in order to elicit favorable testimony. For obvious reasons, the Court is going to want to discount such influence and unoriginal testimony.

Lastly, while the Court can give children’s testimony “substantial weight,” one must understand that the child’s preference is still just one of 13 factors the Court must consider when making a determination regarding the child’s best interests. In fact, the North Dakota Supreme Court has stated that the child’s preference is only one factor to consider in a custody decision and “is not usually determinative.”

Conclusion

A child is more than likely going to be, at a minimum, interviewed to see if he or she is of sufficient intelligence, understanding, and experience to express a preference. If allowed, the child can testify as to their preference, which will likely be given more weight the older the child gets. But that preference is not necessarily dispositive to the case, as it is still just one of 13 factors the Court needs to consider when making its determination as to which household is in the child’s best interests.

If you have questions regarding your custody/residential responsibility matter, contact our Family Law Team at 701-297-2890 or you can email us below.

The information contained in this article and on this website is for informational purposes only and not for the purpose of providing legal advice.

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