Child’s Best Interests Standard

One of the most frequently asked questions in family law is how a court determines child custody in contested matters. Under Minnesota law, custody is determined under the “best interests of the child” standard. What does this statutory phrase mean in practical terms? The legislature has identified thirteen factors that a court will use when considering custody, which are summarily set forth below:

  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;
  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. except in cases in which a finding of domestic abuse has been made, the disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child.

Joint Custody in Minnesota

Additionally, when joint custody (as opposed to sole custody) is sought by one of the parties, four additional factors are considered by the court:

  • (a) the ability of parents to cooperate in the rearing of their children;
  • (b) methods for resolving disputes regarding any major decision concerning the life of the child, and the parents’ willingness to use those methods;
  • (c) whether it would be detrimental to the child if one parent were to have sole authority over the child’s upbringing; and
  • (d) whether domestic abuse has occurred between the parents.

With respect to joint custody, unless domestic abuse has occurred between the parents, a court will use a rebuttable presumption that joint legal custody is in the best interests of the child upon request of either or both parties (note that this presumption only extends to legal custody, not to physical custody). However, if domestic abuse has occurred between the parents, then the court uses a rebuttable presumption that joint legal or joint physical custody is not in the best interests of the child.

In applying and weighing the above “best interest of the child” factors, a court is not entitled to use one of the factors to the exclusion of all other factors. For example, many people harbor the misconception that if one parent is the child’s “primary caretaker,” then that parent will automatically be awarded custody of the child. Under the plain language of Minnesota law, this factor alone is not determinative of custody and, in fact, the legislature has specifically provided that the primary caretaker factor cannot be used as a presumption in determining the best interests of the child.

Further, the court is statutorily prohibited from preferring one parent over the other parent solely on the basis of the sex of the parent. While not specifically stated in the statutes, it appears that these specific provisions were enacted in order to eradicate traditional, gender-based stereotypes in making custody determinations.

Custody: Mothers vs. Fathers

Dads, don’t assume you have no shot at custody. Moms, don’t assume you will get custody solely by virtue of being a mom. As written, the law does not have a gender bias, so traditional roles for mothers and fathers should have no bearing on custody determinations.

Child Custody in Minnesota

Child custody can be one of the most contentious issues that a parent will face. It is important for any parent to have an advocate who understands the complexities of this area of the law and can articulate to the court what is in the best interests of the child.


  1. thanks – determining the best interest for the children after full legal and physical were awarded to me, the children want to participate in sporting and extra ciriculer activiities where the non custodial mother refuses to take them to practices and games. What power do I have to enforce her to take them or to get them there? can I with hold the children and take them during thoses times?

  2. my aunt has custody of my 2 kids. I really want to work with her but she keeps finding little things to critize me. we had verbal agreement to do visits every other weekend now she doesnt want to do that…we had our verbal agreement for little bit over a year now. she wants to go back to orginal court order of 4 hours a month. and what can i do about my aunt telling mean things about me to my kids? i need help!!!

  3. I have been involved in family court litigation in Hennepin Co since 2006, and have lost all hope that there will be justice or that the judge will uphold the law. I was a primary caregiver who lost custody to a wanted fugitive with 12+ substantiated allegations of child abuse against him. I was physically attacked by this person then thrown out on the street to be homeless with the children. Every time I go to court it gets worse…I had the best forensic team in the US to do a risk assessment on my case, to examine the evidence/speak to collateral contacts and determine if there are any risks to the children. It was determined that I pose no risk of harm to my children–but the father poses a significant risk of harm. Of course, the judge threw that out & awarded the other side attorney’s fees b/c my motion is “frivolous”. Since gaining sole custody, my children have been physically and emotionally injured on numerous occasions. A school reports states the my child is living in fear. For trying to protect my children, and keep them safe from abuse, I lost custody and now get only one visit a month. The judge gave the abuser the power to decide if I get any additional visits (he is refusing, and I don’t even get a phone call from my children). I grieve the loss of my children every day. We desperately need reform in family court.

  4. I am writing because i am in desperate need of help. I am “in the middle” of a child custody dispute. My husband filed for divorce in January of 2013 after being separated for 5 years asking for sole physical custody of our daughter. In April of 2013 we both went to an SENE meeting. It was determined at the time that he should get this with the understanding that we should hire a parenting consultant and the consultant would have the ability to change this. I agreed to this because it was best for our daughter not to put her through anything that could be detrimental to her. And i waited for the order….and i waited…and waited. By this time i had changed my mind. Finally in August of 2013 my husbands attorney sent the order to my attorney. It was all wrong. There was no mention of the parenting consultant at all. So we went back to court in October of 2013. It was determined at that time we would go to a child custody elevator and i would pay him temporary child support. When it finally was coming together at the end of December 2013 i found out my hours were being cut at work because my company was going under and a new company was to acquire us. So the child support that we had initially agreed to had to be revised. Finally in on January 31, 2014 we signed it with the understanding that my husband would sign the child custody evaluation document at the same time with me owing him back support going back to November of 2013. This did not happen and only the child support order was filed. My husband fired his attorney in February of 2014 and decided that he would not sign the child custody evaluation document. On March 31, 2014 a status conference was done with Judge Perkins in Carver county to determine what he was up to. My husband got a new attorney in April of 2014 and signed the custody evaluation document which is now of record. Please keep in mind that i can not afford the high child support payment at this time with the mounting attorney bills and the child custody elevators bill (which i paid already). I am not trying to get out of paying the support but i also believe the child support agency has gone about this all wrong. So far to date i have received a letter from them stating that they have turned me over to the federal government, the state government all three credit reporting agencies and a suspension of my drivers license. The agreement on the support order stated that i was not behind that i would pay an additional 10% of back support ($71.00) until paid which totals $681.00 a month. My husband makes 35% more income a month than i do. There is no reason with the exception of spite that he wants custody. I am reaching out to you for help.

  5. I have a question on the whole chips petition. And why can a mother that got her kids high on meth and still get them back

  6. I am wondering what the likelihood of someone sueing for and winning custody of a child they signed their rights to away years ago…there has never been any child protection involvement on any criminal backround of any incidents with any type of authority figures at all…thanks

  7. I have some custody of my daughter. It was the fathers weekend. He failed to return her and refused when police were involved and would rather be charged. It wasn’t until after 24 hrs that there was notification the child was with the father and the officer was told the child wanted nothing to do with the mother… I have taken every legal action and it has been four days now and I still have no baby back. Police have their hands tied. The father is doing this out of spite. And there is nothing by cps or police saying I cannot have my baby back. I filed a motion and have to wait a month for a hearing. I cannot wait a month to get my baby back. What do I do?!

  8. Hi, I’m currently going through a child paternity issue. I have a lawyer in Duluth Mn, however I have been living in Hennepin county for over a year, looking to change jurisdictions and lawyer. My husband and I are married, but he’s not the biological father, but he’s on the birth certificate and has been her dad from day one. Her biological dad petitioned me to court last June 2014,To get rights. He’s known since the child was 2 that he was her dad. So I’m wondering if I can transfer it to my county? There’s no trial dates or anything. My lawyer in Duluth hasn’t been doing anything for the best interest of my daughter or me. My daughter is almost 7 1/2 now. I went to a licensed psychologist and she recommended to changing lawyers and jurisdictions. Thanks.

  9. If a women had 3 kids had them either taken away or she gave them away,does she have the right to keep any children she may have after?

  10. I have 3 children who all for taken away. The first two were taken out of my care in 2013 and I don’t know why. I went through the court system for a whole year. They ended up labeling me as a dangerous and unfit patent, but for what reason, I don’t know. In 2014 a few months after court was over and I lost all hope, I gave birth to my third and he was taken 24 hours after being born. The cop told me I cannot see or have my son due to losing my other two. I have no communication with my children. No letters, no pictures, not even able to Skype. I’m about to get married in a few months and I am wondering since the man I am marrying is the father of my last born and he lost his chance of being a first time father, are we able to have a family we can keep and not go to court. How long do I have to wait. And is there a way to get some kind of contact with my children weather it is pictures and letters and Skype.
    My life has been a huge black hole since I lost them. They were my pride and joy. I had little depression and little anxiety when I had them due to not seeing many of my family members. Now my depression and anxiety is so bad I can’t find a reason to get out of bed. I loved getting up in the morning and taking care and playing with my daughter (my oldest) then my second child came and it got hard cause I didn’t have any help from his father who now has him. My life is hell knowing I lost the best things I had in my life. Not a day goes by when I don’t cry cause I can’t have them in my arms. I can’t even look at their pictures or even talk about them. I’m crying just writing this.
    Please I need answers!!!!

  11. My son’s father and I signed an ROP. The only time he brought me to court was to drop down child support. 9 years ago the judge told him his rights are to pay child support and take alcohol,drug,parenting,and anger management classes, he has not taken them. He only sees his son twice a year with his family cause he won’t see him by hi.self and his mom has to call and ask for my son for him. Than when my son tells him he ask to ask me to see him he puts his mom on the phone. My fiance wants to adopt him he’s been their more for him than his biological dad ever did. How easy is it for a step parent to adopt in MN.

  12. Hello, my name is alexandria. I have an 18 month old daughter that I am desperate to do anything for and am dealing with case worker who is not being legal. if you are an assertive lawyer that understands the types of games cps plays. I need your help and am ready to pay whatever it takes to be heard in court and not let cps destroy my family. My next court date is jan 17 in goodhue county. This is a case worth fighting for.

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