As discussed in previous blog posts regarding physical custody and legal custody, in Minnesota family law cases involving custody, the Court is required to look at thirteen (13) factors to determine what custody arrangement is in the child’s best interests, along with 4 others factors to evaluate whether joint custody is appropriate.
The “best interests” factors are as follows:
(a) “The best interests of the child” means all relevant factors to be considered and evaluated by the court including:
(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; except that a disability, as defined in section 363A.03, 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 interest of the child;
(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, as defined in section 518B.01, 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 as defined in section 518B.01 has been made, the disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child.
Preference of the child may be considered
Out of the 13 “best interests” factors, the second factor in the statute receives a lot of attention. The second factor reads as follows:
(2) the reasonable preference of the child, if the court deems the child to be of sufficient age to express preference.
Minn. Stat. sec. 518.17, subd. 1(2)
In other words, the Court may look at the preference of a child when making a custody determination so long as the child is of sufficient age and maturity to assert such a preference. However, there is no specific or magical age at which a child is allowed to assert a preference. Generally speaking, the older the child, the more weight the Court will give to his or her opinion with respect to custody. However, in these sort of cases, the maturity of the child is the controlling factor, not the age. While there is an age where a child will automatically not be asked his/her preference (example, when the child is less than 8 years old), there is no age when the child’s preference is definitely sought. Another significant factor may be if the child is dealing with any issues that might influence his/her preference (as an example, if a child has mental health issues).
Divorcing parents should know, however, that even if a child asserts a strong preference to live with one parent, the Court must balance the 13 factors to determine what custody arrangement is in that child’s “best interests”. In other words, the preference of a child is simply one factor. Therefore, no one factor is dispositive or controlling when it comes to custody determinations.
The Courts also frown upon any coaching of the child or any efforts by a parent to coax the child’s preference. In custody disputes, the preference of a child is sought by a professional (example: neutral custody evaluator). In this context, it is important to remember that the child’s preference must be voluntary and must have been shared in a context that is considered appropriate by the Court.
If you have questions regarding physical custody and legal custody, contact one of our experienced Minnesota Child Custody Lawyers for a free consultation.