Child Input in Minnesota Divorce and Custody Cases

In his recent book, The Equal Parent Presumption: Social Justice in the Legal Determination of Parenting After Divorce, Dr. Edward Kruk calls for family courts everywhere to discontinue the common practice of relying on professional interpretations of what is in the “best interests” of children of divorcing parents and instead consider the actual wishes of children when deciding divorce and custody cases.[i]

Dr. Kruk argues that many experts claim to know what children involved in divorce and custody disputes want, but that this expert knowledge is based more on speculation and interpretation of research than input from the children.

“Despite countless books and research studies on what constitutes these ‘best interests,’ rarely (if ever) are children asked directly about what it is they actually want in the way of parenting arrangements after divorce,” states Dr. Kruk.

The author believes that children themselves are, in a very real sense, the true experts on their own “best interests,” as they are most affected by their parents’ divorce or custody proceeding and have the best sense of how their parents parent.

The good news for children in Minnesota is that Minnesota courts incorporate the measures that Kruk calls for.

Minnesota Statute 518.17 spells out what “the best interests of the child” means. The statute specifies that the best interests include all relevant factors to be considered and evaluated by the court. Going even further, the statute states that thirteen factors must be considered and commented on by any ruling judge. Among these is this child-input factor: “the reasonable preference of the child, if the court deems the child to be of sufficient age to express preference.”

In other words, children of sufficient maturity have their opinions and input solicited during custody evaluations, the investigations of Guardians ad litem and, in some divorce and custody proceedings, by the judge.

This statute and customary practice shows that in many ways Kruk’s demands are realized within Minnesota family law practice. The statute creates the mandate to listen directly to the voices of children of divorce about the children’s physical, psychological, social, emotional and spiritual needs when considering their best interests.

[i] Edward Kruk, Ph.D., is Associate Professor of Social Work at the University of British Columbia, specializing in child and family policy. His book, The Equal Parent Presumption: Social Justice in the Legal Determination of Parenting After Divorce, was published by McGill-Queens University Press in October of 2013. He also writes the “Co-Parenting After Divorce” column for Psychology Today.