State law copyright claims

(Photo: "485 Schildkröten - cutted". Licensed under CC BY-SA 2.5 via Wikimedia Commons -

(Photo: “485 Schildkröten – cutted”. Licensed under CC BY-SA 2.5 via Wikimedia Commons)

Most people assume copyright protection is governed exclusively by the federal Copyright Act. For the most part, this is true. The Copyright Act does assert that federal copyright law preempts state copyright law:

On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.1

The statute, however, also disclaims any intention to preempt state laws and remedies with respect to:

(1) subject matter that does not come within the subject matter of copyright;

(2) any cause of action arising from undertakings commenced before January 1, 1978;

(3) activities violating legal or equitable rights that are not equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106;

(4) state and local landmarks, historic preservation, zoning, or building codes, relating to architectural works protected under section 102(a)(8);

(5) sound recordings fixed before February 15, 1972. Federal preemption with
respect to sound recordings fixed before then does not begin until February 15,

Contract claims

State law claims are preempted by the Copyright Act, then, only if they protect rights equivalent to the exclusive rights protected by federal copyright law. A claim is preempted only if it is of a kind that comes within the general scope of federal copyright law. If it doesn’t, then the claim is not preempted.

This has come to be known as the “extra element” test. If violation of the state law requires proof of some element in addition to or instead of the exclusive rights federal copyright law affords (i.e., rights to copy, adapt, distribute, display or perform a work), then the state law claim is not preempted by federal copyright law. For this reason, breach of a contract involving a copyrighted work is still actionable under state law.

If the contract is only an agreement not to infringe a copyright, then the state law claim would be preempted. A breach of that kind of contract would be the same thing as violating rights protected under federal law. A cause of action for breach of this kind of contract adds no additional element to an infringement claim.

If the contract provides for a royalty payment to the author in exchange for a publisher’s agreement to print and sell his book to the public, a breach of that contract would be actionable under state contract law. Federal copyright law does not guarantee royalties to authors. Because the royalty agreement is an “extra element,” the state law claim survives federal preemption.

Works not within the subject matter of federal copyright law

State law claims of intellectual property rights in works that are not within the subject matter of federal copyright also survive federal preemption. This is sometimes called the “subject matter” requirement of federal copyright preemption.

An example would be works that are not yet fixed in a tangible medium. Federal copyright law only protects works that are fixed in a tangible medium. An extemporaneous speech is an example of a work that is not fixed in a tangible medium. A sound recording of the speech, or a written transcription of it, would receive federal copyright protection, but an impromptu, unwritten, unrecorded spoken-word performance would not.

A band that comes up with a new song while jamming in the guitar player’s garage does not get federal copyright protection until they write it down on paper or record it in some tangible medium such as a tape recording or a digital recording of some kind.

State law may or may not provide a remedy for infringing these kinds of works. Federal law does not create or “approve” any particular state law remedies. It merely identifies what areas of the law states are still free to regulate. It is up to each state to decide whether, and in what way, it will protect intellectual property rights in works that are not of a kind that are protected by federal copyright law.

Pre-1972 sound recordings

Before 1972, sound recordings were not within the subject matter of federal copyright law. Accordingly, the federal Copyright Act provides that state law claims for infringement of rights in a pre-1972 sound recording may be pursued notwithstanding the general rule that federal copyright law preempts state copyright law.

The recent decision in Flo & Eddie, Inc. v. Sirius XM Radio, Inc.3 illustrates this rule. The musical group The Turtles recorded the song, “Happy Together” and a number of other songs in the 1960’s. Two of the founding members later created Flo & Eddie, Inc., which now owns all rights to The Turtles’ master sound recordings. Satellite radio and Internet broadcaster Sirius XM Radio, Inc. publicly performed some of these recordings. Flo & Eddie, Inc. had not granted it a license to do so. Since 1960’s sound recordings do not receive federal copyright protection, the Turtles would lose unless state law offered them some protection. As it turns out, California is one of a small number of states that provides statutory protection for intellectual property rights in pre-1972 sound recordings. California Civil Code § 980(a)(2) provides:

The author of an original work of authorship consisting of a sound recording initially fixed prior to February 15, 1972, has an exclusive ownership therein until February 15, 2047, as against all persons except one who independently makes or duplicates another sound recording that does not directly or indirectly recapture the actual sounds fixed in such prior recording, but consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate the sounds contained in the prior sound recording.

The court interpreted the rights of “exclusive ownership,” as used in this statute, as giving the owner of a pre-1972 sound recording the exclusive right to publicly perform the recording.

It should be noted that the California statute only protects rights in the recording of the song, not rights in the song itself. A cover band could legally perform its own version of “Happy Together” and neither federal nor California state law would provide a remedy to the recording’s owner, Flo & Eddie, Inc. The cover band could still be liable to the songwriter, though, if the song has been fixed in tangible form, such as sheet music, and if the sheet music (as distinguished from a sound recording of a performance of it) is otherwise protected under federal copyright law.


It is a mistake to rely exclusively on the federal Copyright Act, as some practitioners do, to determine the extent of copyright protection to which a creative work may be entitled. Every copyright issue should involve a three-part analysis: (1) Does the federal Copyright Act protect the work? (2) What kinds of protection might state law provide? (3) Are state law protections preempted by federal law?

Postscript: Shortly after the California decision, Flo & Eddie, Inc. succeeded on a summary judgment motion against the same defendant in New York on the basis of New York state’s common law protection of copyrights.4

  1. 17 U.S.C. § 301 (2015)
  2. Id.
  3. CV 13-5693 PSG (RZx), C.D. Cal., September 22, 2014)
  4. Flo & Eddie, Inc. v. Sirius XM Radio, S.D.N.Y. No. 13 Civ. 5784 (CM)

The Stakeholders in Custody Law Reform

("Lost Child," by Enrique Melida)

(“Lost Child,” by Enrique Melida)

Stakeholder, like competencies and bucketization, is a term for which business managers and corporate officers have developed a special fondness in recent times.

Although it has been around for many years, it was not used very often until the 1980’s. It started becoming wildly popular sometime around the beginning of the new millennium.1 Describing it as a term “plump with cheaply bought respect,” Guardian (UK) writer Steven Poole includes it in his Top 10 list of “the worse examples of management-speak.”2 It now can be found in almost every organizational and/or governmental discussion of family law reform.

But who are the “stakeholders” in the context of custody law reform?

What is a stakeholder?

Business and legal definitions

The term stakeholder first appeared in the English language in 17083, apparently invented for the purpose of describing the person who holds the money (the “stakes”) in a bet. Black’s Law Dictionary still defines it this way, but adds a second, broader definition, namely, a “third party who holds money or property, the right to which is disputed between two or more other parties.”4 Courts continue to employ this meaning of the term.5

Using this definition, the stakeholder in the context of custody law would be a person who holds other people’s money until a winner of the custody contest, presumably one of the parents, is declared. An attorney would be an example. Family law attorneys typically take money from their clients (called a “retainer”) and hold it in a trust account until work on a divorce or custody proceeding is completed,6 it being anticipated that a “winner” of the custody proceeding will be declared at that time.

A second meaning of the term began to emerge in the corporate world during the latter half of the twentieth century. In his 1965 book, Corporate Strategy, Igor Ansoff used the term to refer to those people who, although not directly invested in a corporation as a shareholder, nevertheless had a financial interest in a company’s operations – i.e., employees and officers of the corporation, and firms having business dealings with it. Edward Freeman popularized this use of the term in his influential 1983 book, Strategic Management: A Stakeholder Approach. U.K. Prime Minister Tony Blair fostered its spread into the realm of politics in 1996 by using the term “stakeholder economy” to convey the idea that everyone has a financial interest in the well-being of a nation’s economy.7

By the mid-1990’s, the term had become a favorite among corporate executives and business project managers, who used it somewhat more loosely to describe anyone with an interest that may be affected by a firm’s operations or the outcome of its business decisions. Modern dictionaries now include this as an additional definition of the term. For example, in addition to the original legal definition (one who holds the bets for a wager), the online dictionary at lists “a person or group that has an investment, share or interest in something, as a business or industry” as an alternate definition of the term.8

A “stakeholder” in the custody law context, then, can mean an attorney (or some other person who holds money pending the decision of a custody dispute) or some other person or group that has an investment, share, or interest in a business or industry related to custody decision-making. Logically, this would include, in addition to family law attorneys, judges, custody evaluators, guardians ad litem, and mediators. Since the amount of child support often is affected by the custody designation or schedule, and because mothers are awarded sole custody (or primary residential responsibility) far more frequently than fathers are, women and their advocates would also come within the business/financial definition of “stakeholder.”

Academic definitions

Some academicians have used the term in an even broader sense, to designate any person at all who may be affected by a process or the outcome of a process, whether business-related or not. Legal scholar Kathryn L. Mercer, for example, has written a law review article analyzing custody law in terms of the competing interests of four categories of people she describes as “stakeholders” – the father, the mother, the state, and the child.9

Arguments have been made that another category of “stakeholders” should also be recognized, namely, private care providers, such as foster parents.10

Mediator definitions

As used among mediators, stakeholders are “the people or organizations involved in, or affected by [a] negotiation.”11 A mediator typically will say that in a married couple’s custody dispute, the husband and the wife are the stakeholders.12

Although some mediators acknowledge that children have an interest in the outcome, they generally treat the two parties who are competing for custody of a child as the stakeholders in a custody dispute.

How courts and family law reform organizations conceptualize the term

Courts and family law reform organizations often reference the need to involve “all stakeholders” in the discussion of custody law reform, but they rarely define that term. They are more likely to simply cite some examples. The examples they cite, and the “stakeholders” they select, are revealing, though.

In the Foreword to the report on the Family Law Education Reform Project (© 2006 Association of Family and Conciliation Courts), the importance of “involving stakeholders” is stressed.13 In this court association publication, the “stakeholders” identified are judges, lawyers, mediators, parent educators, mental health experts, and financial planners.14 The Association says it is “looking to cosponsor a series of stakeholders meetings to bring together representatives of law schools, the bench, bar, mental health, and dispute resolution communities.”15

The American Bar Association has a similar view. In its seminal publication, A Judge’s Guide: Making Child-Centered Decisions in Custody Cases (2008), it says, “all relevant stakeholders should participate …  to ensure children’s issues are addressed” and then proceeds to identify these as being judges, family law attorneys, women’s advocates, child protection officers, educators, health care providers, business representatives, and people who will ensure “racial and cultural diversity.”16

In short, courts and officially organized family law reform coalitions generally have not adopted the academic  definition of “stakeholder.” Rather, they have stayed fairly true to the original and modified-corporate meanings of “stakeholder” – i.e., those persons and organizations that have a business, financial or proprietary interest in the custody decision process or outcome.

Who are the only real stakeholders in custody law reform?



A custody law reform committee or coalition should not consist of a bevy of judges, attorneys, mediators, court personnel, women’s advocates, or anyone else with a financial stake in children or the custody decision-making process. Rather, it should consist of a panel of child development experts, perhaps aided by an attorney or two with an understanding of how to draft statutory language to mesh their recommendations with legal requirements.

My book, The History of Custody Law, is available in paperback and Kindle e-book formats at

Purchase The History of Custody Law

  1. To see this, try running the term in GoogleBooks’ Ngram Viewer application.
  2. Steven Poole, 10 of the worst examples of management-speak,, accessed on February 14, 1015.
  4. BLACK’S LAW DICTIONARY 660 (2d ed., 2001)
  5. See, e.g., Booth v. Booth, 134 P.3d 1151 at fn. 6 (Utah Ct. App. 2006); State v. Dudley, 21 A.2d 210 at 129-30 (N.J. Sup. 1941) (describing a stakeholder as one who receives wagers and then pays them over to the winner of an event, such as a horse race.)
  6. A retainer agreement may also authorize withdrawal of money as it is earned, or as expenses are incurred, rather than upon completion of the case.
  7. Mike Clayton, THE INFLUENCE AGENDA 9 (2014)
  8., accessed on February 14, 2015.
  9. Kathryn L. Mercer, A Content Analysis of Judicial Decision-Making – How Judges Use the Primary Caretaker Standard to Make a Custody Determination, Kathryn L. Mercer, 5 WM. & MARY J. OF WOMEN & THE LAW 1, 14-21 (1998)
  10. See, e.g., Susan V. Mangold, Challenging the Parent-Child-State Triangle in Public Family Law: The Importance of Private Providers in the Dependency System, 47 BUFF. L. REV. 1397 (1999)
  11. Jim, Hilbert, Collaborative Lawyering: A Process for Interest-Based Negotiation, 38 HOFSTRA L.R. 1083, 1093 (2010).
  12. Id. at 1095.
  13. Andrew Schepard & Peter Salem, Foreword to the Special Issue on the Family Law Education Reform Project, 44 FAM. CT. REV. 513, 519 (2006).
  14. Id.
  15. Id. at 520.

Should Parents’ Wishes Matter? A look at Minn. H.F. 465 (2015)

Dusten Brown with the biological daughter he lost to adoption. (Photo: Associated Press, 2013)

Dusten Brown with the biological daughter he lost to adoption. (Photo: Associated Press, 2013)

The Minnesota legislature is set to remove the parents’ wishes as a consideration when judges decide the custody of children.


In May, 2012, Governor Mark Dayton vetoed a bill that shared parenting advocates hoped would bring Minnesota one step closer to making shared parenting the norm among divorced and never-married parents, as it is in a growing number of states. The bill would have raised the presumptive amount of time each parent is entitled to spend with a child from 25% to 35% of the year. In his veto message, Dayton suggested a group comprised of “stakeholders” and their representatives should be formed to study the issue and make a recommendation for the following year.

An ad hoc coalition promptly formed to carry out the governor’s directive. Members included select judges, attorney members of the bar association’s family law section, attorney members of the American Academy of Matrimonial Lawyers, the Minnesota Coalition for Battered Women, the Center for Parental Responsibility, court-appointed personnel (e.g., custody evaluators) and a few others.

Out of this came a bill, H.F. 2722. It was signed by the governor on May 5, 2014 and took effect on August 1, 2014. It directed courts to take a neutral stance toward shared parenting. Specifically, it added language to Minn. Stat. Section 518.17 stating that there is no presumption either for or against joint physical custody. This new language codified existing Minnesota appellate court rulings to that effect.1

The group has continued to function. This year it has created fourteen new bills, running the gamut from authorizing judges to deviate from the statutory child support guidelines when they do not believe the outcome is fair, to regulating the content of paternity recognition forms.

One of the bills they have come up with, H.F. 465, will make “the benefit to the child in maximizing parenting time with both parents and the detriment to the child of limiting a parent’s parenting time” a required consideration in custody cases, while removing the parents’ wishes from the list of factors judges are required to consider when deciding the custody of children.

Current law

Minnesota, like nearly every other state, has enacted a statute setting out a list of factors for judges to consider when deciding the custody of a child. In Minnesota, the list appears in Minnesota Statutes Section 518.17, subd. 1(a).

The thirteen factors listed in the statute cover things like the parties’ mental and physical health; the child’s interaction and relationship with parents, siblings and others; who has been primarily responsible for care-giving; the child’s preference; any domestic violence that has occurred; and other things.

The bill rewrites existing factors, adds the new one mentioned above, and proposes moving the joint-custody-related factors directly into the list of “best interest” factors rather than listing them separately. This would seem to signal some interest in moving away from Minnesota’s historical hostility to joint physical custody. This change is being offered at a price, however, namely, the right of parents to have a say about the custody of their children.

The constitutionality of removing parents from the custody decision

 The U.S. Supreme Court has declared that parents have a fundamental right to the custody and care of their children, including the right to make child-rearing decisions.2

While many people think that this fundamental right only exists in third-party custody disputes (where a non-parent fights a parent for custody), no court has ever held that it is so limited. There are many cases outside of the third-party-custody context holding that parents have a fundamental right to the custody and care of their children, including the right to make childrearing decisions.3

At least one constitutional law scholar has suggested that because of this,  a list of “best interest” factors that does not include the parents’ wishes would be unconstitutional.4

It is sometimes suggested that parents waive their constitutional rights when they file for a divorce or initiate a custody proceeding against the other parent in some other way. There is no reason in logic or  case precedent, however, why a parent’s fundamental rights should be deemed “waived” whenever one or both parents ask a court for help ordering  those rights when the parents are not in agreement.  Waiving the right to decide is not the same thing as waiving the right to have one’s wishes considered before another person makes a decision.

A waiver is not valid unless it is voluntary. Not every parent who is involved in a custody proceeding has voluntarily given the court power to decide custody issues. The respondent in a divorce case often is brought into the case against his will. An unmarried mother often is  brought into the father’s parenting time petition against her will.

Nor is a waiver valid unless it is knowingly made. Yet, couples who file for a divorce, or an unmarried father who asks the court for an order giving him enforceable parenting time rights, are never informed that by simply filing that form or making that request they are thereby waiving fundamental parental rights. There is nothing inherent in either of these acts that would put a reasonable person on notice that he or she is doing so.

Parents are reasonably entitled to assume that they will be allowed to have a say before a court issues an order concerning the upbringing of their own children. They may not be entitled to assume that the judge will give them everything they want, but they are reasonably entitled to assume the judge will at least give some consideration to what they have to say about how they think their own children should be raised.

The Minnesota bill is part of a national trend to commit ever-increasing authority to the state to decide what is best for its citizens. Yet, the U.S. Supreme Court has held 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.”5

Of course, the state has a legitimate interest in protecting children — even from their own parents sometimes. Parental rights are not absolute. The fact that a right is not absolute does not mean it does not exist at all, though. A defeasible or conditional right is still a right. That parents have a right to have their wishes considered does not mean they have an absolute right to insist that courts give them what they want.

Considering parents’ wishes is in children’s best interest

“Natural bonds of affection lead parents to act in the best interests of their children.”6 The common law has recognized this for hundreds of years, and the U.S. Supreme Court has made it something akin to a constitutionally mandated rebuttable presumption.7

Since parents are presumed to act in their children’s best interests, it would make sense for a court that is concerned about doing what is best for a child to consult the child’s parents, that is to say, to consider the parents’ wishes.

Proponents of the bill maintain that parents should no longer be presumed to act in their children’s best interests when they seek a court’s help deciding how they will exercise their parental rights, either by filing for divorce or, in the case of an unmarried couple, asking a court to issue a custody or parenting time order. No case has ever held, however, that parental rights cease to exist in family court, or that the fact that parents get a divorce rebuts the presumption that natural parents act in their children’s best interests, or that the fact that unmarried parents ask a court for help with defining how they are to exercise their parental rights, rebuts the presumption that natural parents act in their children’s best interests.

The act of getting a divorce does not disprove a parent’s natural inclination to act in her child’s best interests. A wife who is married to a man who has abused or molested their children certainly is acting in the children’s best interest when she files for a divorce.

Even in ordinary divorce situations, where the spouses simply cannot get along with each other, they may reasonably decide that a divorce is in their children’s best interests because it will protect them from growing up in an unloving household where they are exposed to parental conflict on a daily basis.

The fact that two people have stopped caring about each other simply does not mean they have stopped caring about their children.

A radical change

It is the law in every American jurisdiction that courts must consider the parents’ wishes when making custody and parenting time decisions concerning their own children.8 This is partly because of constitutional requirements and partly because of common law parental-preference doctrines.

The Uniform Marriage and Divorce Act (“UMDA,” now called the Model Marriage and Divorce Act (“MMDA.”)) lists “the parents’ wishes” as one of the five elemental “best interest” factors.9 The Official Comment describes this as a codification of the common law of every jurisdiction in the United States.10

It might be thought that Minnesota is being progressive here, but it may be questioned whether impairing fundamental rights is “progressive.”

Is the “parents’ wishes” factor unnecessary?

Some might argue that it is not necessary to list the parents’ wishes as a consideration in a “best interests” statute because courts will always give effect to their wishes if they are in agreement, and if they aren’t in agreement then their wishes cancel each other out. Neither assumption is correct.

 Courts do not always approve parents’ agreements as to custody

 It is not true that courts always give effect to parents’ wishes when they agree. Courts are never bound by the parents’ agreement as to custody, and there have been cases where judges have rejected the parents’ agreement. This is because courts are entrusted with both the power and the responsibility to protect the interests of all children within their jurisdiction. Called parens patriae authority, it is inherent to courts, i.e., not a product of legislation. If a judge does not believe the parents’ agreement is in children’s best interests, she may require the parties to schedule a hearing so she can make an independent determination whether their agreement is in their children’s best interests or not.11

Historically, courts did not respect parents’ wishes when they were in agreement on joint physical custody. There has been a trend toward greater acceptance of joint physical custody in recent years, and it may be expected that last year’s codification of appellate court rulings that there is no presumption either for or against it may help encourage that trend. Nevertheless, judges still are not bound to respect parents’ wishes just because they are in agreement. They still have the responsibility to make an independent determination that the parents’ agreement is in the best interests of their children.

It is true that judges generally are inclined to respect parents’ wishes when they are in agreement. But that is largely because Section 518.17 currently tells them  that the parents’ wishes is a factor that is a relevant consideration in connection with determining what is in a child’s best interest. The agreement is very good evidence of their wishes as to custody and parenting time. Removing that factor from the “best interest” standard will leave judges floundering for some other basis for assuring themselves that the terms of an agreement are in a child’s best interest.

 Parents do not “cancel each other out” just because they disagree

 Saying that parents’ wishes “cancel each other out” if they conflict assumes a court must give effect to either one or the other’s wishes. But this assumes that a court must treat a parent’s wishes as controlling. That is not what Section 518.17 says about how these factors are to be applied. It says that all factors must be considered, but no one factor is to be treated as controlling. “The parents’ wishes” factor doesn’t mean a court is required to do what a parent says. It only means a court must consider their wishes.

Example. Contested custody case in which the “best interest” factors are equally balanced. Father has come around to wanting Mother to have sole custody, but a hearing is still necessary because their inability to decide on a schedule has prevented them from entering into an agreement. At the hearing, Father tells the judge that his wishes as to custody are different now, but the judge refuses to listen, telling him his wishes as to custody are no longer to be considered.  After the hearing, the judge orders joint custody over both parents’ objection because he thinks the child would benefit from spending  equal time with both parents; under the statute there is no presumption against joint custody; and the legislature, by deleting “the parents’ wishes” from the “best interest” standard, has expressed its intention for judges to disregard parents’ wishes when making  custody decisions.

Example. Mother refuses to participate in mediation, or otherwise communicate with Father, because she is afraid of Father, or mediation reaches an impasse solely because there are unresolved underlying issues having to do with hurt  feelings (e.g., one of them had an affair.) Accordingly, the case proceeds to a hearing. If the judge inquired of them what kind of parenting time arrangement each of them wanted, it may turn out their wishes are actually not that different. Under the new law, that would not be a sufficient basis for issuing an order resolving the matter in the way both parents want, because the parents’ wishes are no longer enough to support a “best interest of the child” finding.

Parents’ wishes can be relevant to custody and parenting time issues even if they do not agree about anything at all.

 Example. Mother says she wants custody because she loves her child. Father says he wants custody so he won’t have to pay child support. The court does not have  to give either parent what they want for either of these reasons. But one would think a court should at least be authorized to consider these statements when  deciding what kind of custody arrangement is likely to serve a child’s interests  better.

It is possible for a couple to be unable to agree even though their wishes do not conflict.

 Example. Parents both wish that each parent could have midweek contact with the child in addition to weekends and holidays, but they can’t agree on which days they should be. Notice how the parents’ wishes to allow each parent to have some midweek time continue to exist even though they can’t agree on what particular days those should be. Their wishes on this point are not “cancelled out.” Under current law, the judge should consider the parents’ wish to let each parent have some midweek time, and then fashion an order that is designed to effectuate that wish by either deciding for them which days of the week it will be or ordering midweek time for each parent but leaving it to them to work out the specific details (e.g., through mediation.) The bill would remove the parents’ wishes from consideration, leaving the judge – and a reviewing court — hard-pressed to find some other way to justify such an order.

Parents’ wishes are not adequately protected by other Minnesota statutes

Minn. Stat. § 518.13 authorizes a court to approve a divorcing parents’ agreement without a hearing if they have signed a stipulation and they are both represented by counsel. Gen. R. Prac. 306 lets courts approve pro-se agreements if a waiver of counsel is filed. The court must set a hearing, though, if the agreement “does not appear to be in the best interests of the children.” At first blush, these seem to give adequate assurance that courts will give due consideration to parents’ wishes, but they do not.

Preliminarily, it is worth noting that judicial approval of parental agreements without a hearing will become problematic if “parents’ wishes” is removed as a “best interest factor.” This is because Section 518.13 does not direct courts to consider parents’ wishes when deciding whether their agreement is in children’s best interests or not. Section 518.17 is the statute to which judges turn to guide their“best interest” determinations. Yet, if the only evidence with which a judge is presented is the expression of the parents’ wishes (i.e., their agreement), then on what basis is she supposed to determine whether an agreement “appears to be in the children’s best interests” if that factor no longer appears?

More to the point, though, the parents’ wishes are relevant to a child’s best interests even if they aren’t able to enter into a written agreement to submit to the court. There are many reasons a couple may not be able to enter into an agreement even when their wishes do not conflict.  (See the examples given above.)

What is best for children is not necessarily the same as what the parents want, but sometimes it is

 The justification that is most often given for silencing parents in custody proceedings is that courts should focus on what is best for children in custody cases, not what parents want. This is true, but in many cases this is a false dichotomy. In many cases, what a parent wants may also be what is best for the children. And courts are constitutionally required to presume that parents want what is best for their children. It’s a rebuttable presumption, of course, but if it is to mean anything at all it must, at a minimum, mean that a parent’s wishes about custody and parenting time are to be treated as being at least relevant to the issue – something a judge must at least consider even if she is not bound by them.

Again, like all the other “best interest” factors, the parents’ wishes are not binding on courts. Just as the child’s preference is not binding on a court if other factors lead a judge believe it is not in his best interest, so the parents’ preferences are not binding on a court if other factors make a judge believe they are not in the child’s best interest. Listing a factor does not make it controlling on the question of what is in children’s best interests; it only means it is something that must be considered.

Not all parents are so intent on hurting each other that they lose sight of what is best for their children

 Supporters of excising parents from the custody decision typically argue that divorcing parents’ wishes are to hurt each other, which is not in the best interest of their children.

Not every parent seeking a custody or parenting time order is motivated to hurt the other parent, though. Even if a parent hates the other parent, that does not mean she is no longer able to care about what is in her child’s best interest. Many divorcing parents actually believe it is in their children’s best interests to maintain frequent contact with both parents despite the parents’ divorce.

An unmarried father has to initiate a proceeding to establish enforceable  rights even if he and the mother are getting along well. Otherwise, by law, he has none – not even a right to talk to his child on the phone, to enroll the child in school, to make major medical decisions for the child, or many other things that the law would recognize as his right if he were married to the mother.

Moreover, even if a particular parent does wish to use custody and parenting time as weapons of destruction of the other parent to the detriment of the child, that fact would seem to be highly relevant to what is in the child’s best interests. It is evidence that a particular parent is more likely to put his or her own interests ahead of the child’s, which rebuts the presumption that this particular parent acts in children’s best interests. A judge should consider this fact, if it is present in a particular case.

In any event, courts are not required to allow parents to use custody and parenting time as a way to hurt each other. Again, including the factor only means courts have to consider the parents’ wishes, not that they have to give controlling effect to them in every case — or even in any case, for that matter.

Will it make a difference if the parents’ wishes are deleted from the statute?

 Yes. It could make a difference, if courts properly apply rules of statutory construction.

Expressio unius est exclusio alterius is a rule of construction that says the inclusion of one thing in a statute implies the exclusion of the other. A listing of factors implies a legislative intent to exclude consideration of other factors.

This rule will not be applied if it can be shown that the legislature probably would have intended to include the omitted item if it had thought of it. In the case of a repeal of a factor, however, the legislature takes deliberate action to remove something from a list. In that situation, it is clear it not only thought about the factor, but it took deliberate, intentional action to remove it from consideration. Expressio unius would apply.

Another rule of statutory construction is that every part of a legislative enactment must be assumed to be intended to have an effect. The deletion of a factor from a list of things a court is to consider must be assumed to be intended to have the effect of removing it from among the things a court is to consider.

Applying these rules, a reasonable judge would infer that the legislature is telling him that he is no longer supposed to consider the parents’ wishes when making custody decisions concerning their children.

Why should we care about this if other parts of the bill seem to be signaling movement toward greater acceptance of shared parenting?

It is not necessary to trade one piece of what is in a child’s best interest off for another. Viewing different “best interest” factors as bargaining chips that can be traded away is the wrong approach to deciding what factors are pertinent to the determination of what is in children’s best interest. It is antithetical to the goal of doing what is best for children.

Parents can provide valuable input on a wide variety of things that are addressed in a custody and parenting time order, not just the label or the quantity of time each gets. The details of the schedule, for example. Judges and evaluators should value this input and encourage parents to provide it. Something is terribly wrong if they would prefer to have parents just shut up and “leave the decision about your children to us.”

H.F. 465 is good in other respects. It would only take one small amendment to make it acceptable: Keep “the parents’ wishes” in Section 518.17 as one thing (among many) a judge is to consider when deciding what is in a child’s best interest.

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  1. See, e.g., Schallinger v. Schallinger, 699 N.W.2d 15 (Minn. Ct. App. 2005). The law recognizes a distinction between a presumption and a preference. There is a long line of Minnesota appellate court cases holding that sole physical custody is the preferred outcome, although they do not go so far as to say that it  rises to the level of a legal presumption. See, e.g., Wopata v. Wopata, 498 N.W.2d 478, 482 (Minn. Ct. App. 1993). It is not clear what effect the new statutory language will have on the cases holding that there is a preference (as distinguished from a presumption) for sole physical custody.
  2. Troxel v. Granville, 530 U.S. 57, 72-73 (2000))
  3. See, e.g., Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925); Wisconsin v. Yoder, 406 U.S. 205; Santosky v. Kramer, 455 U.S. 745, 753 (1982) (“The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child”)
  4. See Raymon Zapata, Child Custody in Texas and the Best Interest Standard, 6 The Scholar 197, 208 (2003)
  5. Troxel, supra note 2 at 73.
  6. Parham v. J. R., 442 U.S. 584 (1979).
  7. Id.
  8. Jurisdictions that include the parents’ wishes as a “best interest” factor in custody cases include:

    Alabama, Ala. Code § 30-3-152(a)(1) (2014)

    California, Cal. Fam. Code § 3043 (2014) (court must “consider and give due weight” to parents’ wishes); § 3041 (requiring courts to abide by parents’ wishes as to custody unless doing so would be detrimental to child)

    Colorado, Colo. Rev. Stat. § 14-10-124 (2014)

    Connecticut, Conn. Gen. Stat. § 46b-56(c)(4) (2014)

    Delaware, Del. Code, tit. 13, § 722(a)(1) (2014)

    District of Columbia, D.C. Code § 16-914(a)(3)(B) (2014)

    Florida, Fla. Stat. § 61.13(2)(c)2(a) (2014) (must “consider the expressed desire of the parents” as to custody in a divorce); § 751.05 (same re: third party disputes)

    Guam, Guam Code § 19-8404(h) (2014) (as to visitation)

    Idaho Code § 32-717(1)(a) (2014)

    Illinois, 750 Ill. Comp. Stat. 5/602(a)(1) (2014)

    Indiana, Ind. Code § 31-17-2-8(2) (2013)

    Iowa Code § 598.41, subd. 3.g (2014) (listing each parent’s wishes as to joint custody as a “best interest” factor); § 598.41, subd. 2.a (requiring court to “consider” a parent’s wish for joint custody, whether or not there is an agreement)

    Kansas, Kan. Rev. Fam. Code § 23-3203(b) (2014)

    Kentucky, Ky. Rev. Stat. § 403.270(2)(a) (2014) (wishes of the parents and any de facto custodian)

    Louisiana, La. Civ. Code art. § 134 (2014) (each parent’s disposition to continue rearing the child); art. § 132 (shall give effect to the parent’s agreement as to custody unless court finds it is not in child’s best interest)

    Maine, Me Rev. Stat. § 19A-1653, subd 2 (2014) (court shall give effect to parent’s wishes if they have an agreement); subd 3 (parent’s motivations listed as a “best interest” factor)

    Maryland, Best v. Best, 93 Md. App. 644 (1992)

    Michigan, Mich. Comp. Laws § 722.26a (2014) (court must consider either parent’s wish for joint custody, if requested)

    Minnesota, Minn. Stat. § 518.17 (2014)

    Mississippi, Albright v. Albright, 437 So. 2d 1003 (Miss. 1983)

    Missouri, Mo. Rev. Stat. § 452.375 (2014) (“The wishes of the child’s parents as to custody and the proposed parenting plan submitted by both parties”)

    Montana, Mont. Code § 40-4-212(1)(a) (2014)

    Nebraska, Neb. Rev. Stat. § 43-2923 (2014) (each parent’s wishes, as expressed in a proposed parenting plan the parent submits to the court, is included as a “best interest” factor)

    Nevada, Nev. Rev. Stat. § 125.480, subd. 4(b) (2014) (“Any nomination by a parent or a guardian for the child”)

    New Jersey, N.J. Rev. Stat. § 9:A-1(c)(2) (2014) (“parent’s willingness to accept custody”)

    New Mexico, N.M. Stat. § 40-4-9(A)(1) (2014)

    New York, Bishop v. Lansley, 106 A.D.2d 732 (N.Y., 3rd Dept. 1984) ) (court to consider wishes of parents as to custody, which may be inferred from their conduct)

    North Carolina, N.C. Gen. Stat. § 50-13.2 (2014) (court must consider a parent’s wish for joint custody)

    Ohio Rev. Code § 3109.04(F)(a) (2015)

    Oregon, Or. Rev. Stat. § 107.137 (2014) (listing the “interest of each party in the child” as a “best interest” factor)

    Rhode Island, Pettinato v. Pettinato, 582 A.2d 909, 913-14 (R.I. 1990)

    South Dakota, S.D. Codified Laws § 25-4A-21 (2014) (requiring courts to consider any parent’s wish for joint physical custody); § 25-4A-24 (requiring courts also to consider any parent’s opposition to joint custody)

    Texas, In re Chambless, 257 S.W.3d 698 (Tex. 2008)

    Utah Code § 30-3-10(3) (2014) (parent’s wish not to have custody shall be taken into consideration in determining whether custody award to the other parent is in a child’s best interest)

    Washington, Wash. Rev. Code § 26.09.187(3)(a)(6) (2014

    Virginia, Va. Code § 48-9-208 (2014) (requiring courts to consider parents’ wishes as to how custody and visitation disputes will be resolved)

    Wisconsin, Wis. Stat. § 767.41(5)(am)(1) (2014)

    Wyoming, Wy. Stat. § 20-2-201 (2014) (“Each parent’s willingness to accept responsibilities of parenting”)

    Several states require parents to file a parenting plan(s) in custody cases, i.e., to put their wishes in writing and submit this written expression of their wishes to the court for its consideration. Most of these states include provisions for filing separate proposed plans when the parents are not in agreement.

    Arizona, Ariz. Rev. Stat. § 25-403.02 (2014) (requiring parents who are not in agreement to each express their wishes in a proposed parenting which they must submit to the court for its consideration)

    Georgia, Ga. Code § 19-9-1 (2010) (requiring each parent to submit a parenting plan expressing their wishes as to custody, if they are not in agreement); § 19-9-5 (2010) (requiring court to approve agreed-upon parenting plans unless contrary to child’s best interest; court is prohibited from declining approval of an agreement on the basis that it calls for sharing custody jointly.)

    Hawaii, Haw. Rev. Stat. § 561-46.5 (2014) (parents required to file parenting plans. If unable to agree, then each must file a separate proposed plan expressing his or her wishes as to custody for the court to consider)

    Louisiana, La. Civ. Code art. § 131 (2014) (requiring court to order the parents to submit a parenting plan, either jointly or separately)

    Massachusetts, Mass. Gen. Laws ch. 208, § 31 (2014) (“if the issue of custody is contested and either party seeks shared legal or physical custody, the parties, jointly or individually, shall submit to the court at the trial a shared custody implementation plan…. At the trial on the merits, the court shall consider the shared custody implementation plans submitted by the parties.”)

    Missouri, Mo. Rev. Stat. § 452.375 (2014) (requiring courts to consider “|t|he wishes of the child’s parents as to custody and the proposed parenting plan submitted by both parties”)

    Nebraska, Neb. Rev. Stat. § 43-2923 (2014) (each parent’s wishes, as expressed in a proposed parenting plan the parent submits to the court, is included as a “best interest” factor)

    New Hampshire, N.H. Rev Stat.  § 461-A:4 (2014) (“the parents shall develop and file with the court a parenting plan”)

    New Jersey, N.J. Rev. Stat. § 9:2A-1(g) (2014) (if no agreement, then court to consider each parent’s wishes as set out in each parent’s proposed custody plan); 9:2A-1(h) (court to give deference to parents’ agreement as to custody)

    North Dakota, N.D. Cent. Code § 14-09-30 (2014) (requiring parents to submit parenting plans)

    Oklahoma, Okla. Stat. tit. 43, § 109(C) and (D) (2014) (court must consider any plan for custody that either or both parents submit)

    Oregon, Or. Rev. Stat. § 107.101 (2013) (stating policy of law is to give effect to parents’ wishes by encouraging and giving parents wide discretion to develop their own custody arrangements); § 107.101 (requiring parents to develop and file a parenting plan)

    Tennessee, Tenn. Code § 36-6-403, -404 (2014) (requiring the parties to each submit a proposed parenting plan for the court’s consideration if they are unable reach an agreement through mediation or otherwise)

    Utah Code § 30-3-10 (2014) (requiring parent seeking joint custody to submit a parenting plan for court’s consideration; and requiring a parent’s wish not to have custody to be taken into consideration in determining whether a custody award to the other parent is in a child’s best interest); § 30-3-10.8 (requiring parent seeking joint or shared parenting to submit a parenting plan; § 30-3-10.3 (requiring court to approve parenting plans (i.e., to consider and give effect to a parent’s wishes) wherever possible)

    Virginia, Va. Code § 48-9-205 (2014) (mandating submission of parenting plans.)

    In these states, it is not necessary to list “parents’ wishes” as a required consideration in a “best interest” statute because another statute (the parenting plan statute) provides a mechanism adequate to assure that parents’ wishes are considered.

    Minnesota does not have a statute mandating either the filing of a parenting plan or a judge’s consideration of one unless it is requested by both parents. (See Minn. Stat. § 518.1705 (2014).)

  9. See MMDA § 402.
  10. Id.
  11. Some people mistakenly believe that parens patriae power only comes into existence when there’s been a finding that the parents are abusive, etc. This is not true. For example, the power to order an investigation of whether abuse has occurred is an exercise of parens patriae before there has been a finding of abuse. It is true that there will need to be a finding of abuse, etc. before a judge may exercise the power in certain ways, such as by issuing an order terminating or substantially restricting a parent’s rights. The inherent parens patriae power of courts is broader than that, though. It refers to the broad responsibility of the state to ensure that the interests of those citizens who are unable to protect their own interests are protected. A judge exercises parens patriae power every time he issues an ordinary custody or child support order.

    One reason for the confusion about this may be the fact that the term is not often found in cases other than those challenging a statute or court order terminating or substantially restricting a parent’s rights. In these cases, the state will defend by arguing that it was a legitimate exercise of state power, and it may cite the parens patriae power to support that argument. It isn’t often invoked by name in custody decisions because the issue is not very likely to be raised in those kinds of cases. It would be difficult to successfully challenge a legislature’s enactment of a law listing relevant “best interest” factors, or a court’s decision to use that statute as a basis for a custody decision, on the basis that it is an improper exercise of parens patriae power.