Testimony of Children

Guiding Statute 518.166 INTERVIEWS

The court may interview the child in chambers to ascertain the child’s reasonable preference as to custodian, if the court deems the child to be of sufficient age to express a preference. The court shall permit counsel to be present at the interview and shall permit counsel to propound reasonable questions to the child either directly or through the court. The court shall cause a record of the interview to be made and to be made part of the record in the case unless waived by the parties.

In contested custody proceedings, and in other custody proceedings if a parent or the child’s custodian requests, the court may seek the recommendations of professional personnel whether or not they are employed on a regular basis by the court. The recommendations given shall be in writing and shall be made available by the court to counsel upon request. Counsel may call for cross-examination of professional personnel consulted by the court.

Child Testimony re: Child’s Preference in Determining Custody

• In a dissolution proceeding, the legislature has specified that it may be appropriate for a court to allow testimony of a child to consider “the reasonable preference of the child, if the court deems the child to be of sufficient ability, age, and maturity to express an independent, reliable preference.” Minn. Stat. § 518.17, subd. 1(a)(3) (2024). But the decision is “a discretionary choice for the trial judge,” Madgett v. Madgett, 360 N.W.2d 411, 413 (Minn. App. 1985), and the court may interview the child in chambers rather than requiring the child to testify, Minn. Stat. § 518.166 (2024).
• The court may interview the child in chambers to ascertain the child’s reasonable preference as to custodian, if the court deems the child to be of sufficient age to express preference. The court shall permit counsel to be present at the interview and shall permit counsel to propound reasonable questions to the child either directly or through the court. The court shall cause a record of the interview to be made and to be made part of the record in the case unless waived by the parties.
• The custodial preference of a child should be given weight to the extent that it might bear on the child’s emotional well-being when the court is convinced that it is not the product of manipulation by the non-custodial parent. Edsten v. Edsten, 407 N.W.2d 102, 104 (Minn.Ct.App.1987). Custodial preference, however, is but one factor among many that a court uses to assess the best interests of a child. Lundell, 387 N.W.2d at 658.
• When it is obvious from the record that a child’s stated preference results from manipulation by the moving party, it is within the district court’s discretion to deny an evidentiary hearing. Geibe, 571 N.W.2d at 778 (citing Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 690-91 (Minn.App.1989)
• Many other Minnesota cases have indicated that a child’s preference, even a teenager’s preference, is only one factor to consider when determining whether a change in custody is in the child’s best interests. See, e.g., Lundell v. Lundell, 387 N.W.2d 654, 658 (Minn.App.1986); Englund v. Englund, 352 N.W.2d 800, 802-03 (Minn.App.1984). While an older child’s preference is an important consideration, stability in custody arrangements is still presumed to be in a child’s best interests. Westphal v. Westphal, 457 N.W.2d 226, 229-30 (Minn.App.1990).
• When a child’s preference is cited as one ground to modify custody, a court generally will require other allegations of abuse or of a “serious breakdown” in the child’s relationship with the custodial parent. See, e.g., Geibe, 571 N.W.2d at 779; Madgett v. Madgett, 360 N.W.2d 411, 413 (Minn.App.1985); Rinker v. Rinker, 358 N.W.2d 165, 168 (Minn.App.1984)

Child Testimony re: purpose other than child preference

• If a parent seeks to call a child as a witness in a dissolution proceeding for another purpose (other than their preference on custody/pt) , the parent must show the testimony is relevant and that the probative value of the testimony is not substantially outweighed by the danger of unfair prejudice and the testimony is not needlessly cumulative. See Minn. R. Evid. 401-03;
  • Example from appellate case Barron vs. Abdelwahed: “When considering the best interests of the children in making a custody determination, one factor the district court is to consider is whether domestic abuse has occurred in the household. Minn. Stat. § 518.17, subd. 1(a)(4) (2024). While the children’s testimony on whether domestic abuse occurred would have been relevant to the issue, we agree with the district court that the evidence would have been needlessly cumulative.”

Request for children to testify 

• A formal motion should be filed if requesting the children testify or, at the least, make a formal request on the record at a hearing prior to the trial. 
  • Hondlik vs. Hondlik, MN Court of Appeals, 2002
    • *3 Finally, appellant argues that the district court should have interviewed the child or appointed a guardian ad litem. However, appellant made no formal motions for this type of relief; rather, at the hearing before the district court, appellant’s attorney suggested that the district court “might consider interviewing the child” or “potentially order a guardian ad litem to make sure that the child’s preference is well founded.” A district court’s decision regarding whether it should interview a child or appoint a guardian ad litem is discretionary. 
    • See Minn.Stat. § 518.166 (2000) (court “may interview the child in chambers to ascertain the child’s reasonable preference as to custodian”); Schwamb, 395 N .W.2d at 735; Madgett, 360 N.W.2d at 413. Based on our review of the record and circumstances here, we cannot conclude that the district court abused its discretion by failing to sua sponte interview the child or appoint a guardian ad litem.
  • Ostrander vs. Ostrander (fragmin), MN Court of Appeals 2006
    • Mother moved the district court at the evidentiary hearing to either interview the children in camera or to have the children testify as to their custody preferences. The children range in age from 11 to 15. However, we note that eight months elapsed from the first hearing on father’s modification motion to the evidentiary hearing, yet mother waited to make her motion until the day of the hearing. No reason was given for this delay. Under the circumstances, we conclude that the district court did not abuse its discretion in denying mother’s motion to interview the children.

The Court has discretion whether or not to interview a child

• The decision to interview children in custody proceedings “is a discretionary choice for the trial judge” because “[a]n interview is not the only way to determine a child’s preference.” Madgett v. Madgett, 360 N.W.2d 411, 413 (Minn. App. 1985).
  • Other ways to provide the Court with child’s preference include
    • calling witnesses who the child has expressed their opinion to
    • asking the Court to appoint a GAL to talk to the child
    • a parent testifying to what the child has told them
    • a parent outlining in an affidavit what the child has told them