How Child Custody is Determined using the “best interests of the child”

When the court must make a decision regarding custody of a child, whether in a divorce or in a separate custody proceeding, the court must consider specific factors when making its decision. The court also may consider any other factors that are relevant to the determination of custody. So, what are Minnesota’s new Best Interests Factors for Child Custody?


The Specifics

The specific factors the court must consider are referred to as the “best interests of the child” factors and are set forth in Minnesota Statutes section 518.17. These factors give parents and attorneys direction regarding what facts the court must consider when determining custody and also creates uniformity throughout the state in custody proceedings. Additionally, because the best interests factors have been in existence for many years, previous court decisions considering the best interests factors provide guidance to parents, attorneys, and the court in divorce and custody proceedings.


When Minnesota’s New Best Interests Child Custody Factors Became Law

On August 1, 2015, the best interests of the child factors were revised by the Minnesota Legislature to be more child-focused. The effects of this change are not yet known. Many of the new best interests factors are similar to the old best interests factors. But a comparison of the two suggests a few key considerations that the Minnesota Legislature likely intended for future child custody determinations.


What’s Different?

The new best interests factors show a greater emphasis on the involvement by both parents in the child’s life. The new best interests factors instruct the court to consider the benefit to the child of maximizing parenting time with “both parents” and that it is in the best interests of the child to promote the child’s relationship with “both parents.” Similarly, the court is instructed to consider “both parents” as having the capacity to develop and sustain nurturing relationships with their child unless there are substantial reasons to believe otherwise.


Why the old Child Custody Laws Weren’t Working

The old best interests factors instructed the court to consider each parent’s capacity to parent, but did not suggest that each parent be presumed to be capable of parenting. The old best interests factors included thirteen factors for the court to consider, plus an additional four factors to consider whenever joint legal or joint physical custody is sought. The new best interests factors no longer have two separate inquiries. Instead, twelve factors are applied to decide joint legal and joint physical custody.


Child Custody Considerations

The statute now specifically states that parents may be awarded joint physical custody without an equal division of parenting time. This change incorporates past practices in which parents agreed to a joint physical custody label even though the child would reside with one parent the majority of the time. This also may reflect the Minnesota Legislature’s intent to move away from the labels of custodial and non-custodial parents, which tended to create controversy.


Domestic Abuse in child custody determinations

Whether domestic abuse has occurred between the parents continues to be a factor. If abuse has occurred, the presumption against joint legal custody remains. However, the domestic abuse factor now suggests that the domestic abuse and its effect on the child be addressed in greater detail. What effect this change will have must still be determined.

If domestic abuse has not occurred, the presumption in favor of joint legal custody remains. There is also a presumption against joint physical custody if domestic abuse has occurred. But the statute now specifically states that there is no presumption for or against joint physical custody if domestic abuse has not occurred. There has been some concern in the past that some judges have presumed that joint physical custody is not in a child’s best interests. Again, the effect of this change has not yet been determined.


Other Key Considerations in Child Custody

The child’s preference as to custody is still a factor if the court feels the child is of sufficient age and maturity to express a preference. But the new factor provides that the preference must be independent and reliable. Previously, courts have not considered a child’s preference if the preference was the result of manipulation or influence by a parent. The new factor now specifically recognizes this.

The court must consider all best interests factors and cannot rely on any one factor to the exclusion of all others. The court cannot prefer one parent over the other solely on the basis of a parent’s gender. The court also must make detailed findings on each factor and explain how each factor led to its custody determination.


Why Jeddeloh & Snyder PA for your Minnesota Child Custody Attorney

Child custody cases are emotional and complicated. The court must consider the “best interests of the child” factors and recent changes to these factors. You should consult with an experienced family law attorney if you are involved in a custody proceeding. The experienced family law attorneys at Jeddeloh & Snyder, PA can help represent your interests as a parent.




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