Tomorrow, August 1, 2015, Minnesota’s child custody laws are about to see their biggest change in a generation.

And no one’s talking about it.

Well, not exactly no one.  No one in the press or general public at least.  Divorce lawyers, mediators, custody evaluators, and the rest of the professionals I spend most of my day with can’t stop talking about them.

Otherwise: crickets.

And, oddly enough, the reason for both the chorus of professional opinions and the almost painful degree of public silence are probably one and the same:

No one really knows what these new laws mean.

The “Best Interest Factors”: A Brief History

Minnesota has long required that child custody decisions be made based on the “best interest of the child.” To help provide some clarity to an admittedly ambiguous concept, the legislature provided a series of factors court’s should consider in reaching custody decisions, reasonably called the best interest factors.

To get a handle on just how big a deal this change is, it’s worth pausing to understand exactly the sort of distinguished a juridical pedigree we’re dealing with when we talk about the Best Interest Factors.

A child’s “best interests” has been a buzzword (or term of art) in Minnesota for the better part of 120 years. See Flint v. Flint, 63 Minn. 187, 189 (1895).

And as with any storied legal lineage, the “best interest” standard has evolved slowly (almost painfully so)–a published decision here, a clarifying amendment there. From a few factors in their initial codification, to 8, to 17, and, as of August 1, 2015, back down to 12 (plus nine interpretive principles).

As a point of reference, here’s a rough timeline of the more significant changes to the factors since 1969:*

  • 1969: Minnesota’s relatively terse custody statute is amended to include something like the beginnings of a “best interest standard.” Courts are instructed to “consider all facts in the best interest of the children” including the age and sex of the child and the “children’s relationship with each parent prior to the commencement of the action.”
  • 1974: Best interests considerations are expanded to nine specific factors and one catch-all.
  • 1978: The best interest factors are re-written and pared down to eight factors.
  • 1979: Two new factors are added to the statute: “The capacity and disposition of the parties to give the child love, affection, and guidance, and to continue educating and raising the child in his culture and religion or creed, if any,” and “The child’s cultural background.”
  • 1981: Three (of what would later be four) joint custody best interest factors are added to the statute.
  • 1985: The Minnesota Supreme Court reads a “primary caretaker presumption” into the best interest factors in Pikula v. Pikula, 374 N.W.2d 705, 712 (Minn. 1985) (“[W]hen both parents seek custody of a child too young to express a preference, and one parent has been the primary caretaker of the child, custody should be awarded to the primary caretaker absent a showing that parent is unfit to be the custodian.”)
  •  1986: A presumption of joint legal custody is enacted.
  • 1987:  “[T]he 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, is added as a factor.
  • 1989: Responding to Minnesota Supreme Court’s primary caretaker presumption, the legislature demotes primary caretaker status from a presumption to a factor, by including the “child’s primary caretaker” and “the intimacy of the relationship between each parent and the child” as factors, while simultaneously prohibiting the Court from using one factor to the exclusion of others.
  • 1990: The Minnesota Supreme Court continues to use of the primary caretaker presumption in Maxfield v. Maxfield, 452 N.W.2d 219 (Minn. 1990). In response, the legislature strengthens its prior mandate, specifically prohibiting: “The primary caretaker factor” from “be[ing] used as a presumption in determining the best interests of the child.”
  • 1994: “[T]he disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child,” is added as a factor.
  • 2006: Minnesota enacts a rebuttable presumption that each parent should have his/her child at least 25% of the time (or roughly four overnights every two weeks).
  • 2014: Phase I of the Custody Dialogue Group reforms discussed in greater depth here.

Or, put another way, despite some additions and smaller amendments, the majority of our best interest factors haven’t been given any sort of global overhaul since 1978.

Just for reference: that’s the same year Dallas premiered on network T.V. and Grease (yes the one with John Travolta) was released.

Jimmy Carter was president. The Soviet Union was still a country.

So, I think it’s safe to say times have changed.

I Don’t Think That Factor Means What You Think it Means.

But even if we agree that families are structured somewhat differently than they were in 1978, figuring out how best to reflect those changes in the law is another matter.

For years, Minnesota (and many other states) have seen a push towards mandatory (or at least presumptive) shared parenting and joint physical custody, with all the myriad meanings both entail. Several different versions of this battle were fought and re-fought (without success) in the Minnesota legislature over the past decade, leaving all the combatants exhausted.

Following the most recent, failed attempt to legislate mandatory shared parenting time, a variety of organizations banded together to form an ad hoc Custody Dialogue Group (more about them here), which, based on a list of 26 agreed-upon principles, slashed Minnesota’s 17 best interest factors down to 12.

And while the Group’s work product has now become law, we’re left with new legislation that, by virtue of the many voices that went into crafting it, has no single, monolithic meaning. No one author we can look to and say “okay, and this means what?”

For some, it’s a marked advancement for the rights of fathers: a victory in the cause of co-parenting.  For others, a needed modernization to an outdated law.  For still others a more workable set of factors for judges, evaluators, and families.

But whatever the effect of the new factors, the powers that be seemed aligned as to their purpose:  to focus less on the rights of parents and more on the needs of children.  Or, formulated slightly differently, to make custody decisions less about which parent is “better” and more about how to meet the child’s needs given the reality of a divorce or separation.

Of course, that still doesn’t tell me where my kid is going to sleep on Wednesday nights.

The Run Down

Though there’s some merit in trying to make sense of these new laws from 40,000 feet, the real shift in focus only becomes apparent when taken factor-by-factor.  And while I won’t (knowingly) belabor the point, it’s worth taking each of these new factors one at a time:

(1) A child’s physical, emotional, cultural, spiritual, and other needs, and the effect of the proposed arrangements on the child’s needs and development;

For those keeping track, under our old law “the wishes of the child’s parents as to custody” was the first factor.  Not only has that factor been completely removed, but its lead-off hitter position has been taken by this one: the needs of the child.  If that’s not a message, I don’t know what is.

The point being that custody decisions are more than a tally of parenting merit badges (diapers changed, parent-teacher conferences attended, noses wiped). They’re an assessment of the child’s needs and how best to meet them. Correspondingly, the “rights” (or wishes) of the parent no longer even merit consideration.

(2) Any special medical, mental health, or educational needs that the child may have that may require special parenting arrangements or access to recommended services;

In hindsight, it seems surprising that a child’s needs (including any special needs) were never given any explicit consideration under our old custody laws.  Sure, they could be shoehorned in a number of places, but there was no single factor that actually used the phrase “a child’s needs.”  No longer, the first two new best interest factors exclusively focus on a child’s needs, including any special needs, as compared to exactly none of the 17 old factors.

(3) The reasonable preference of the child, if the court deems the child to be of sufficient ability, age, and maturity to express an independent, reliable preference;

I’ve written before on when a child is old enough to choose. But now we’ll need to ask not just if she’s old enough, but if she’s old enough, able enough, and mature enough, to choose independently and reliably.  A court cannot just ask what an (older) child wants, it must also understand what informs that preference.

(4) Whether domestic abuse, as defined in section 518B.01, has occurred in the parents’ or either parent’s household or relationship; the nature and context of the domestic abuse; and the implications of the domestic abuse for parenting and for the child’s safety, well-being, and developmental needs;

Consideration of domestic violence has been part our custody factors since 1987, though our old law looked only to domestic violence committed by or against a parent.  The new factor expands its scope to any domestic violence “occur[ing] in the parents’ or either parents household or relationship,” while also providing a more nuanced treatment of sub-factors courts should consider if, in fact, domestic abuse did occur: it’s nature and context, the implications for parenting, safety, and the child’s needs (there they are again.)

And while I appreciate the new factor’s more nuanced approach to domestic abuse, the nuance is unfortunately one-sided. For all its improvements, our new factors continue to treat domestic abuse as the equivalent of physical violence (borrowing its definition from Minnesota’s Domestic Abuse Act). As a result, the factor continues to ignore the many different forms of abuse which don’t rise to the level of physical violence but nonetheless have huge impacts on parenting (read: coercive control).

(5) Any physical, mental, or chemical health issue of a parent that affects the child’s safety or developmental needs;

Remember my earlier post about therapy records and divorce? The one where I gave an equivocal “maybe” to the question: can my ex get copies of my therapy records as part of our custody case?

My answer just got more equivocal.

Because now, instead of “the mental and physical health of all individuals involved,” the Court need only consider mental (or physical or chemical) health issues that affect a child’s safety or developmental needs.  Arguably, the parent seeking disclosure of medical records will face a higher hurdle before medical records are turned over.

(6) The history and nature of each parent’s participation in providing care for the child;

(Alternative title: they took away my primary caretaker presumption and all I got was this lousy factor.)

That’s right.  The primary caretaker factor is gone, and all that’s left is a generalized consideration of each parent’s caretaking history.  This is no mere potato/potah-to distinction.

Consideration of a child’s “primary caretaker” only works to the benefit of one parent. You either were or you weren’t.  But the other parent may have played an important role in caretaking, even if we wouldn’t call them the primary caretaker.  The revised factor allows the Court to take that parent’s contributions into consideration as well, without resorting to the diaper-counting mentioned above.

(7) The willingness and ability of each parent to provide ongoing care for the child; to meet the child’s ongoing developmental, emotional, spiritual, and cultural needs; and to maintain consistency and follow through with parenting time;

Instead of “capacity” and “disposition” to provide “love” and “guidance” (however you measure that) the revised factor focuses much more on measurable deliverables (to borrow a phrase from my friends in the corporate world). It’s all about willingness, ability and follow-through.

(8) The effect on the child’s well-being and development of changes to home, school, and community;

Where our prior factors wanted to know about a child’s “adjustment” to home, school and community, and the “permanence…of the proposed custodial home” the new factor cuts straight to the issues: what about the child’s life will change, and how will it affect the child?

(9) The effect of the proposed arrangements on the ongoing relationships between the child and each parent, siblings, and other significant persons in the child’s life;

The new factor still looks to a child’s relationships with her parents, siblings, and other important people, but in a much more direct and child-centered way. No more “interaction” and “interrelationship” (whatever they meant).

(10) The benefit to the child in maximizing parenting time with both parents and the detriment to the child in limiting parenting time with either parent;

While this brand new factor is a far cry from mandatory shared parenting, it’s importance shouldn’t be understated.  Frankly, it deserves its own post.

You can read the factor essentially one of two ways:

1.  [The Court shall presume that there is a] benefit to the child in maximizing time with both parents…

or

2. [The Court shall consider whether or not there is a] benefit to the child in maximizing time with both parents…

The first is essentially a legislative judgment that maximizing time is good, and should generally be done in the absence of other (presumably compelling) reasons to the contrary. The second is a conditional consideration that only asks the court to look at whether there is a benefit, without assuming one exists.

I’ve heard persuasive arguments for both readings.  The first seems to be supported by a plain reading of the statute as well as by the use of the definite article (“the”).  The second is more in keeping with the fact that this is just one factor among many, rather than an overriding principle or presumption (but more on presumptions below).

If I’m picking the factor most likely to be heavily litigated, this is it.

(11) Except in cases in which domestic abuse as described in clause (4) has occurred, the disposition of each parent to support the child’s relationship with the other parent and to encourage and permit frequent and continuing contact between the child and the other parent; and

Factor 11 broadens a portion of our old statute, looking beyond just encouraging contact, to whether each parent supports the child’s relationship with the other parent. Encouraging contact isn’t enough if you’re discouraging the relationship in other ways.

(12) The willingness and ability of parents to cooperate in the rearing of their child; to maximize sharing information and minimize exposure of the child to parental conflict; and to utilize methods for resolving disputes regarding any major decision concerning the life of the child.

The final factor lumps together many of what used to be the “joint custody factors.”  The new factor, however, also looks to the parents’ ability to share information and minimize exposure to conflict, while removing any consideration of “whether it would be detrimental to the child if one parent were to have sole authority over the child’s upbringing.” Let’s call this the workability factor. Can these parents really parent together?

A Matter of Principle

Beyond the 12 new (or newish) best interest factors, Minnesota’s new custody statute also includes nine principles, or cannons of construction, which govern the application of the new best interest factors.

Now, in fairness, not all nine are principles in the same way.  Some directly govern how (procedurally) to apply the above factors:

The court must make detailed findings on each of the factors [above] based on the evidence presented and explain how each factor led to its conclusions and to the determination of custody and parenting time. The court may not use one factor to the exclusion of all others, and the court shall consider that the factors may be interrelated.

Others function more as substantive prohibitions on things a court may not consider:

Like parents with disabilities:

Disability alone, as defined in section 363A.03, of a proposed custodian or the child shall not be determinative of the custody of the child.

or parents who are members of the armed forces:

[A] court may not consider only a parent’s past deployment or possible future deployment in determining the best interests of the child

(This isn’t technically a principle, as it’s contained in a separate subsection, though it easily could have been.)

or parental bad behavior that has no impact on the child:

The court shall not consider conduct of a party that does not affect the party’s relationship with the child

The principles also address Minnesota’s legal and physical custody presumptions (and non-presumptions.) The presumption of joint legal custody in many cases (and sole legal custody in cases of domestic abuse) remains intact, but with a more detailed set of considerations to guide how a presumption of sole legal custody can be rebutted in cases of domestic violence. See my points on Factor 4, above.

Likewise, Minnesota maintains its official agnosticism towards joint physical custody arrangements (“There is no presumption for or against joint physical custody”) while codifying a 1984 Court of Appeals decision to clarify that, “Joint physical custody does not require an absolutely equal division of time.”Hegerle v. Hegerle, 355 N.W.2d 726, 731-32 (Minn. Ct. App. 1984).  So more a reminder than a substantive reform.

But the most interesting principles take the form of presumptions that refuse to call themselves presumptions (the presumptions that dare not speak their names?):

The court shall consider that it is in the best interests of the child to promote the child’s healthy growth and development through safe, stable, nurturing relationships between a child and both parents.

and

The court shall consider both parents as having the capacity to develop and sustain nurturing relationships with their children unless there are substantial reasons to believe otherwise. In assessing whether parents are capable of sustaining nurturing relationships with their children, the court shall recognize that there are many ways that parents can respond to a child’s needs with sensitivity and provide the child love and guidance, and these may differ between parents and among cultures.

While the new language doesn’t explicitly call itself out as a presumption, that seems to be the function, whatever the form.

If a presumption is “a legal inference or assumption that a fact exists” isn’t that precisely what these new principles do? The first presumption might even be read as conclusive, as it’s written more as a statement of legislative policy which doesn’t brook disagreement.  And the second, while rebuttable, would require “substantial reasons to believe otherwise.”

Did we just change the standard of proof in (at least some) custody cases from preponderance of the evidence to clear and convincing evidence?

I don’t pretend to know.

A Brave New World

Of course, the last 2,000+ words have to be taken with more than a few grains of salt.

I’ve heard it said by more than a few professionals that the new factors will have precisely no impact on the outcome of most custody disputes.

Zero.

Zilch.

None.

The thought being that while our judges and other decision-makers must consider the best interest factors, custody determinations are not the sort of thing one makes with a calculator or a ruler or even a set of 12 (or 17 or 8) factors.

Societal attitudes, judicial education and experience, our cultural parenting zeitgeist if you will, these are the things that (on a macro level) drive custody outcomes.  Not 12 new factors.

And I confess, I find myself thinking much the same thing. All other things being equal, I’m fairly dubious that the new custody laws will produce substantively different outcomes in the majority of litigated custody matters, at least in the immediate future.

But even if my doubts are well founded, it would be a mistake to dismiss the significance to this legal sea change simply because it can’t be expected to produce immediate and dramatic results. Because while the shift in the law may be subtle, it also mirrors a broader societal change in how we understand children, parents, and parenting in the 21st century.  And consistent with this more modern viewpoint, the new factors provide more room for the law to grow and change with contemporary families.

Changes (even big changes) in the law may not always have a sudden impact.  Some changes take time.

*(For anyone really geeking out on the legal history, consider reading Judge Gary Crippen’s two thoughtful (and controversial) articles on the topic Minnesota’s Alternatives to Primary Caretaker Placements: Too Much of a Good Thing? and Stumbling beyond Best Interests of the Child: Reexamining Child Custody Standard-Setting in the Wake of Minnesota’s Four Year Experiment with the Primary Caretaker Preference, as well as Theresa Peterson’s 1999 law review article The State of Child Custody in Minnesota: Why Minnesota Should Enact the Parenting Plan Legislation.)

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