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.
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.
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.
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.
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.
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.”
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.” 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.
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. 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. The Official Comment describes this as a codification of the common law of every jurisdiction in the United States.
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.
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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