One of the most difficult decisions a judge has to make is primary custody of a child. The consequences of those decisions are extremely serious, and the emotions are often running very high. To complicate matters, often the parties are representing themselves. So how does a judge make that decision?
The focus in any custody decision is the child’s best interests. The Legislature has established a dozen specific factors that judges must consider in determining what is in a child’s best interest. Although these factors are well known to lawyers who practice family law, most people are unaware of them.
Many judges, me included, give a copy of these factors to self-represented litigants prior to a custody trial so they can prepare their case accordingly. The district court must make detailed findings on each of these factors:
(1) The child's physical, emotional, cultural, spiritual and other needs, and the effect of the proposed arrangements on the child's needs and development;
(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;
(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;
(4) Whether domestic abuse 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;
(5) Any physical, mental, or chemical health issue of a parent that affects the child's safety or developmental needs;
(6) The history and nature of each parent's participation in providing care for the child;
(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;
(8) The effect on the child's well-being and development of changes to home, school, and community;
(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;
(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;
(11) Except in cases in which domestic abuse 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;
(12) And 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.
Obviously, there is a lot to unpack in these factors. Several of them are focused on the parents’ past actions, but several others involve the ongoing ability of each parent to provide the best possible care for the child, as well as cooperate with the other parent.
The child’s preference, assuming the child is of sufficient age and maturity to express it, is only one factor of the 12. Sometimes these trials can take several days to bring all relevant evidence forward.
Finally, absent substantial evidence to the contrary, the court assumes that both parents have the capacity for a healthy and nurturing relationship with both parents, even if there are very different parenting styles.
The goal in these difficult cases is to promote cooperation between parents and to foster good relationships with both parents.
Often that’s a very tall order, but it is a duty we judges take very seriously.
Dale Harris is a Sixth Judicial District judge in the St. Louis County Courthouse in Duluth.