Deciding The Best Interest In Custody Cases
As a divorce lawyer I’m always amazed that my clients very rarely ask me about this simple question. I suppose the reason is there so just so much going on during a divorce that the basic questions get left out. Or, and I think this is much more likely, that as Americans we believe that the justice system will, well, be just! We have an inherent belief that justice will prevail, were not sure how, but it will prevail and will be perfect.
Our justice system is good, possibly the best in the world but the Judge does not just use a magic formula to determine custody in Minnesota. The way custody is determined is not done by some magic formula but instead 13 factors. In Minnesota the Judge will use the law (Minn. Stat 518.17) and will look at 13 (sometimes 14) factors. What’s interesting is that the factors are all equal and the Judge’s don’t really score them like a football game (there’s no wife 8 vs husband 5, winner wife!) instead the Judge looks at each factor and then issues the ruling. The factors are:
1. The wishes of the child’s parent or parents as to custody;
2. The reasonable preference of the child as to custody, 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 of a proposed custodian or the child shall not be determinative of the custody of the child, unless the proposed custody 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 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. The disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child.
One misconceptions during a custody trial are that there is some magic age where the Judge will listen to the child and that’s that. Well, if only it was that simple, but there is no magic age. If your child is bright, articulate and older than say 12, the Judge MAY listen to them, but that is up to the Judges’ discretion.
If you are in a Minnesota custody dispute be sure to look at the factors, see where your strengths in the case lie and be prepared to help your lawyer prove the 13 factors. Good luck.
Rosengren Kohlmeyer, Law Office