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"What are the 13 factors?"
"What does 'best interest of the child' mean?"
"What is it that the courts look at to make custody and parenting time decisions?"
These are common questions and some of the most pressing questions I get. As a primer, review the following. From there let me know what other questions you have -- for each circumstance there are bound to be more questions as each scenario is different. -ML
The Minnesota statutes involving custody, parenting time, joint physical custody, and grandparent/third party custody reference the “Best Interests of the Child”. This phrase is set forth in Subdivision 1(a) of Minn. Stat §518.17 as:
"The best interests of the child" means all relevant factors to be considered and evaluated by the court including:
a) the wishes of the party or parties as to custody;
b) the reasonable preference of the child, if the court deems the child to be of sufficient age to express preference;
c) the child's primary caretaker;
d) the intimacy of the relationship between each party and the child;
e) the interaction and interrelationship of the child with a party or parties, siblings, and any other person who may significantly affect the child's best interests;
f) the child's adjustment to home, school, and community;
g) the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
h) the permanence, as a family unit, of the existing or proposed custodial home;
i) the mental and physical health of all individuals involved; except that a disability of a proposed custodian or the child shall not be determinative of the custody of the child, unless the proposed custodial arrangement is not in the best interests of the child;
j) the capacity and disposition of the parties to give the child love, affection, and guidance, and to continue educating and raising the child in the child's culture and religion or creed, if any;
k) the child's cultural background; and
l) the effect on the child of the actions of an abuser, if related to domestic abuse that has occurred between the parents or the parties.
m) the disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child, if no related to domestic abuse that has occurred between the parents or the parties.
The statute continues on to state that the court may not use one factor to the exclusion of all others.
Further the primary caretaker factor may not be used as a presumption in determining the best interests of the child.
The court must make detailed findings on each of the factors and explain how the factors led to its conclusions and to the determination of the best interests of the child. If the court does not make complete findings, there are means to demand that the court amend its order to demonstrate how the facts support its conclusions.
Whether your concern for the best interests of your children has arisen out of a custody, paternity, divorce, or other case, Atticus Family Law in Stillwater, Minnesota, can help you demonstrate to the court how the best interests of your children will be best served. Please let us know how we can be of service.
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.