Minnesota’s New “Best Interest Factors” for Child Custody

This summer Minnesota enacted significant changes to Minnesota Statute Section 518.17, which defines the best interests test for child custody matters.   Previously, when tasked with decisions regarding child custody and parenting time, Minnesota courts engaged in a two-step process. The first step involved weighing 13 “best interest” factors.. These 13 factors included everything from the wishes of the child to the ability of a parent to raise the child in an environment that provided appropriate cultural and religious instruction. If either party sought joint physical custody, a four-step analysis of the party’s ability to co-parent followed the first step.

The new statute scheme maintains the old statute’s focus on a wide array of issues that attribute to the overall well-being of the child, while updating the factors to reflect and eliminate problems that were previously unaddressed. The new statute also eliminates the two step analysis and instructs the court to consider the parities’ ability to co-parent from the beginning of the inquiry by establishing 12 new best interest factors.

What follows is a brief comparison and analysis of the changes made to the law.

Child’s Preferences

  • Old factor: The reasonable preferences of the child, if the court deems the child to be of sufficient age to express preference;
  • New factor: 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.

Instead of focusing solely on age, this new factor recognizes that age is not always an indication of maturity. The new wording gives the court leeway in determining when a child is mature enough to weigh his or her options, if the child is capable of forming an opinion, and if the child is able to adequately express his or her own opinion on where and with whom he or she wants to live.

Primary Caretaker

  • Old factor: the child's primary caretaker;
  • New factor: the history and nature of each parent's participation in providing care for the child.

Here the new wording recognizes that not every parent child relationship is as simple as a designation of primary or non-primary caretaker. This new wording reflects the often times nuanced parental roles and allows the court to look at the entire history of the relationship without confining parties to the use of such black and white language. Although the wording of the statute has changed, a parent’s role in caring for a child, in all of its forms, will remain central to the court’s custody analysis.

Familial Relationships

  • Old Factors: (1) the intimacy of the relationship between each parent and the child; (2) 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; (3) the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity; and (4) the permanence, as a family unit, of the existing or proposed custodial home.
  • New Factor: the effect of the proposed arrangements on the ongoing relationships between the child and each parent, siblings, and other significant persons in the child's life.

This new wording incorporates several of the old factors into one much more general factor. Not only does this allow the court to consider all ongoing relationships in a child’s life, including relationships with people not previously enumerated in the statute, but the new factor also eliminates the requirement that the court consider the length and permanency of the custody arraignment. This enables the court to be flexible in its evaluation of a situation and to discard factors that it may deem unimportant.


  • Old Factor: the mental and physical health of all individuals involved; except that a disability, as defined in section 363A.03, of a proposed custodian or the child shall not be determinative of the custody of the child, unless the proposed custodial arrangement is not in the best interest of the child.
  • New Factor: (1) any physical, mental, or chemical health issue of a parent that affects the child's safety or developmental needs; (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.

The first new factor now specifically states that the court must consider the chemical health of a parent if it affects a child’s safety or development needs. Although courts often took chemical health into account, this change codifies that ongoing chemical dependency can and should have an effect on a parent’s custody and parenting time. The second new factor focuses not on the health of all individuals involved, as it did previously, but rather on the health of the child and, crucially, a parent’s ability to access help in addressing those needs. While these changes may seem small, the legislature rewrote the to focus exclusively on the effect these issues have on the child.

Party’s ability to parent the child

  • Old Factors: (1) 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; and (2) the child's cultural background.
  • New Factor: (1) the willingness and ability of each parent to provide ongoing care for the child; to meet the child’s ongoing development, emotional, cultural, spiritual, and other needs; and to maintain consistency and follow through with parenting time; and (2) the child’s physical emotional, cultural, spiritual, and other needs, and the effect of the proposed arrangements on the child’s needs and development.

Once again, several best interest factors have been combined into one new factor which retains the mandate that the court consider all aspects of the child’s upbringing including a parent’s ability to meet all of a child’s needs. Importantly, this factor now includes a provision regarding parental follow through on their scheduled parenting time. This consideration had previously gone unmentioned in the best interest factors and the inclusion of the factor suggests that parenting time could be modified due to a parent’s lack of participation.

Child’s adjustment to Environment

  • Old Factor: The child’s adjustment to home, school and community.
  • New factor: The effect on the child’s well-being and development of changes to home, school, and community.

No significant changes.

Impact of Domestic Abuse

  • Old factor:  the effect on the child of the actions of an abuser, if related to domestic abuse, as defined in section 518B.01, 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.
  • New factor: whether domestic abuse, as defined in section 518B.01, has occurred in the parents' or either parent's household or relationship; the nature and context of the domestic abuse; and the implications of the domestic abuse for parenting and for the child's safety, well-being, and developmental needs.

The new factor preserves the court’s concern for whether or not domestic abuse is occurring or has occurred in the home; however, the new wording emphasizes that the court’s focus should be on how domestic abuse affects the child at issue. While a finding of domestic abuse had previously served as a hurdle for parents seeking custody or parenting time, this new wording suggests that a court may engage in a more nuanced analysis of the situation.

Ability to Co-parent

  • Old Factors: (1) except in cases in which a finding of domestic abuse as defined in section 518B.01 has been made, the disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child; and (2) the wishes  of the child’s parent or parents as to custody.
  • New Factors:  (1) the benefit to the child in maximizing parenting time with both parents and the detriment to the child in limiting parenting time with either parent; (2) 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 the other parent; and (3) the willingness and ability of parents to cooperate in the rearing of their child; to maximize sharing information and minimize exposure of the child to parental conflict; and to utilize methods for resolving disputes regarding any major decision concerning the life of the child.

These new factors are important because they instruct the court, in every case, to consider the capability of the parties to co-parent, their willingness to resolve disputes without court intervention, and their ability to foster and encourage positive relationships between their child and their co-parent. This is a subtle reminder to the parties that their interests are secondary to the interests of the child. These factors also move away from the labels of sole physical and joint physical custody and encourage both parents to maximize their time with the child, regardless of their custody designation.