Child’s Best Interests Standard

One of the most frequently asked questions in family law is how a court determines child custody in contested matters.  Under Minnesota law, custody is determined under the “best interests of the child” standard.  What does this statutory phrase mean in practical terms?  The legislature has identified thirteen factors that a court will use when considering custody, which are summarily set forth below:

  1. the wishes of the child’s parent or parents as to custody;
  2. the reasonable preference of the child, if the court deems the child to be of sufficient age to express preference;
  3. the child’s primary caretaker;
  4. the intimacy of the relationship between each parent and the child;
  5. the interaction and interrelationship of the child with a parent or parents, siblings, and any other person who may significantly affect the child’s best interests;
  6. the child’s adjustment to home, school, and community;
  7. the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
  8. the permanence, as a family unit, of the existing or proposed custodial home;
  9. the mental and physical health of all individuals involved;
  10. 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;
  11. the child’s cultural background;
  12. the effect on the child of the actions of an abuser, if related to domestic abuse, that has occurred between the parents or between a parent and another individual, whether or not the individual alleged to have committed domestic abuse is or ever was a family or household member of the parent; and
  13. except in cases in which a finding of domestic abuse has been made, the disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child.

Joint Custody in Minnesota

Additionally, when joint custody (as opposed to sole custody) is sought by one of the parties, four additional factors are considered by the court:

  • (a) the ability of parents to cooperate in the rearing of their children;
  • (b) methods for resolving disputes regarding any major decision concerning the life of the child, and the parents’ willingness to use those methods;
  • (c) whether it would be detrimental to the child if one parent were to have sole authority over the child’s upbringing; and
  • (d) whether domestic abuse has occurred between the parents.

With respect to joint custody, unless domestic abuse has occurred between the parents, a court will use a rebuttable presumption that joint legal custody is in the best interests of the child upon request of either or both parties (note that this presumption only extends to legal custody, not to physical custody).  However, if domestic abuse has occurred between the parents, then the court uses a rebuttable presumption that joint legal or joint physical custody is not in the best interests of the child.

In applying and weighing the above “best interest of the child” factors, a court is not entitled to use one of the factors to the exclusion of all other factors.  For example, many people harbor the misconception that if one parent is the child’s “primary caretaker,” then that parent will automatically be awarded custody of the child.  Under the plain language of Minnesota law, this factor alone is not determinative of custody and, in fact, the legislature has specifically provided that the primary caretaker factor cannot be used as a presumption in determining the best interests of the child.

Further, the court is statutorily prohibited from preferring one parent over the other parent solely on the basis of the sex of the parent.  While not specifically stated in the statutes, it appears that these specific provisions were enacted in order to eradicate traditional, gender-based stereotypes in making custody determinations.

Custody: Mothers vs. Fathers

Dads, don’t assume you have no shot at custody. Moms, don’t assume you will get custody solely by virtue of being a mom. As written, the law does not have a gender bias, so traditional roles for mothers and fathers should have no bearing on custody determinations.

Child Custody in Minnesota

Child custody can be one of the most contentious issues that a parent will face.  It is important for any parent to have an advocate who understands the complexities of this area of the law and can articulate to the court what is in the best interests of the child.

Leave a Public Comment

  • Lisa
    May 23, 2014, 12:52 am

    I am writing because i am in desperate need of help. I am “in the middle” of a child custody dispute. My husband filed for divorce in January of 2013 after being separated for 5 years asking for sole physical custody of our daughter. In April of 2013 we both went to an SENE meeting. It was determined at the time that he should get this with the understanding that we should hire a parenting consultant and the consultant would have the ability to change this. I agreed to this because it was best for our daughter not to put her through anything that could be detrimental to her. And i waited for the order….and i waited…and waited. By this time i had changed my mind. Finally in August of 2013 my husbands attorney sent the order to my attorney. It was all wrong. There was no mention of the parenting consultant at all. So we went back to court in October of 2013. It was determined at that time we would go to a child custody elevator and i would pay him temporary child support. When it finally was coming together at the end of December 2013 i found out my hours were being cut at work because my company was going under and a new company was to acquire us. So the child support that we had initially agreed to had to be revised. Finally in on January 31, 2014 we signed it with the understanding that my husband would sign the child custody evaluation document at the same time with me owing him back support going back to November of 2013. This did not happen and only the child support order was filed. My husband fired his attorney in February of 2014 and decided that he would not sign the child custody evaluation document. On March 31, 2014 a status conference was done with Judge Perkins in Carver county to determine what he was up to. My husband got a new attorney in April of 2014 and signed the custody evaluation document which is now of record. Please keep in mind that i can not afford the high child support payment at this time with the mounting attorney bills and the child custody elevators bill (which i paid already). I am not trying to get out of paying the support but i also believe the child support agency has gone about this all wrong. So far to date i have received a letter from them stating that they have turned me over to the federal government, the state government all three credit reporting agencies and a suspension of my drivers license. The agreement on the support order stated that i was not behind that i would pay an additional 10% of back support ($71.00) until paid which totals $681.00 a month. My husband makes 35% more income a month than i do. There is no reason with the exception of spite that he wants custody. I am reaching out to you for help.

  • E.C.
    January 22, 2014, 8:14 pm

    I have been involved in family court litigation in Hennepin Co since 2006, and have lost all hope that there will be justice or that the judge will uphold the law. I was a primary caregiver who lost custody to a wanted fugitive with 12+ substantiated allegations of child abuse against him. I was physically attacked by this person then thrown out on the street to be homeless with the children. Every time I go to court it gets worse…I had the best forensic team in the US to do a risk assessment on my case, to examine the evidence/speak to collateral contacts and determine if there are any risks to the children. It was determined that I pose no risk of harm to my children–but the father poses a significant risk of harm. Of course, the judge threw that out & awarded the other side attorney’s fees b/c my motion is “frivolous”. Since gaining sole custody, my children have been physically and emotionally injured on numerous occasions. A school reports states the my child is living in fear. For trying to protect my children, and keep them safe from abuse, I lost custody and now get only one visit a month. The judge gave the abuser the power to decide if I get any additional visits (he is refusing, and I don’t even get a phone call from my children). I grieve the loss of my children every day. We desperately need reform in family court.

  • Jess
    July 10, 2013, 4:31 am

    my aunt has custody of my 2 kids. I really want to work with her but she keeps finding little things to critize me. we had verbal agreement to do visits every other weekend now she doesnt want to do that…we had our verbal agreement for little bit over a year now. she wants to go back to orginal court order of 4 hours a month. and what can i do about my aunt telling mean things about me to my kids? i need help!!!

  • mike
    September 4, 2012, 12:36 am

    thanks – determining the best interest for the children after full legal and physical were awarded to me, the children want to participate in sporting and extra ciriculer activiities where the non custodial mother refuses to take them to practices and games. What power do I have to enforce her to take them or to get them there? can I with hold the children and take them during thoses times?