There is a new proposal before the Minnesota legislature to change Minnesota's Custody Law. Minnesota currently requires the Court to consider 13 factors in awarding parents' custody of their children. This proposed bill has gone through committees, and will reach Governor Dayton's desk before May 18, 2015. The revised factors, which are now 12 include the following:
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.
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, as defined in section 518B.01 has occurred in the parents' or either parents' 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 the developmental needs.
5. Any physical, mental, or chemical health issue of a parent that affects the child's safety or developmental needs. The history and nature of each parent's participation in providing care for the child.
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 of 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 to 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 time with either parent.
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 other parent.
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 the methods of resolving disputes regarding any major decision concerning the life of the child.
Unfortunately, a factor deleted from the original statute is parental choice. In the original statute, "the wishes of the parties," was the first factor. This factor is a right that has been upheld by the United States Supreme Court.
Landmark United States Supreme Court Ruling
Nearly 15 years ago, the United States Supreme Court in the case ofTroxel v. Granville, 530 U.S. 57 (2000), in a landmark ruling, held:
... it cannot be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental rights of parents to make decisions concerning the care, custody and control of their children.
Other States Follow Troxel
Our neighboring state of Iowa has the following paragraph in their custody law:
A parent's interest in the care, custody, and control of their children is a fundamental liberty interest (constitutional right), and this interest needs to be overcome by proving the above. Iowa Code Section 598.41(3).
South Dakota's best interest standard includes the "wishes of the parents." S.D. Codified Laws § 25-4A-10.
Wisconsin's custody statute, Wis. Stat. Ann. § 767.41 states considers the parents' wishes:
The wishes of the child's parent or parents, as shown by any stipulation between the parties, any proposed parenting plan or any legal custody or physical placement proposal submitted to the court at trial.
The wishes of the child's parents are taken into consideration in Ohio Rev. Code Ann. § 3109.04.
If this law passes, there may be a constitutional due process argument in the years to come. The proposed law does not allow a Judge to question parents about their wishes for their own children, as it is no longer in the statute!
What good reason would the state of Minnesota have to pass a law that removes a parent's choice to determine who should raise their child?
The State of Minnesota is not in a better position than the actual parents in deciding who should raise children. The parents' wishes should be a paramount factor! The United States Supreme Court in Troxel said that the"Due Process Clause does not permit a State to infringe on the fundamental right of parents to make childrearing decisions simply because a state judge believes a 'better' decision could be made." Troxel v. Granville, 530 U.S. 57, 73, 120 S. Ct. 2054, 2064, 147 L. Ed. 2d 49 (2000). While parental choice on custody should not be the solefactor in determining what is best for the child, it is one of the most important factors and it should not be eliminated. Eliminating this factor would be an infringement of any parents' fundamental right to decide what is best for his/her own children.