1830 Maryland decision Tender years presumption

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1830 Maryland decisionTender years presumption

• Father generally has right to custody of a child.
  However, not right to pull an infant child from
  the bosom of an affectionate mother and place in
  the coarse hands of the father.

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Meinhardt v. Meinhardt111 N.W. 2d 782 (Minn.
1961)

• The rule is so firmly established in this
  jurisdiction that it hardly needs repeating that,
  other things being equal, the welfare of children
  of tender years is best served by being left with
  their mother.

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Troxel v. Granville530 U.S. 57 (2000

• Due Process Clause protects the fundamental
  right of the parents to make decisions concerning
  care, custody, and control of children.

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Minn. Stat. 518.17

• Subdivision 1. The best interests of the child.
  (a) "The best interests of the child" means all
  relevant factors to be considered and evaluated
  by the court including(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

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• (8) the permanence, as a family unit, of the
  existing or proposed custodial home(9) 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(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, 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 and(13) 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.

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Primary caretaker

• The court may not use one factor to the
  exclusion of all others. The primary caretaker
  factor may not be used as a presumption in
  determining the best interests of the child.
• 518.17

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518.17

• (b) The court shall not consider conduct of a
  proposed custodian that does not affect the
  custodian's relationship to the child.

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Problem 1, p.642

• Bryan and Shannon divorce. Shannon drinking
  heavily, depressed. Bryan awarded sole physical
  custody of 2 children.
• One year later Shannon moves to change custody
  to award her sole physical custody.
• Shannon is sober, full-time homemaker. Bryan is
  working all the time. Children in day care.
• She wins. He appeals.

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Problem 2, p. 642

• Jennifer has child at age 15. Steve is dad.
• The child raised by Jennifers mother and sister.
  
• Jennifer at age 18 is about to attend college.
  She will live in residential housing and place
  the child in day care.
• Steve lives at home with his parents. He wants
  custody. Child will be at home during the day
  with his mother.

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Problem 3, p. 642

• Marie and James divorce after 20 years. 3
  children, ages 14, 13, and 8.
• For the first 17 years of marriage James worked,
  Marie stayed home.
• For the 3 years prior to the separation Marie has
  been pursuing education/employment James has
  been doing the after school caretaking.
• Under primary caretaker standard who wins
  custody?
• Under ALI Principles?

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Joint custody

• Joint legal custody
• Joint physical custody

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Minnesota case law

• Minnesota does not favor joint physical
  custody. Rosenfeld v. Rosenfeld, 529 N.W.2d 724,
  726 (Minn.App.1995). In fact, a grant of joint
  physical custody will only be appropriate in
  'exceptional cases.' Wopata v. Wopata, 498 N.W.2d
  478, 483 (Minn.App.1993) (quoting Brauer v.
  Brauer, 384 N.W.2d 595, 598 (Minn.App.1986)).
  This is because regularity in the daily
  routine of providing the child with food, sleep,
  and general care, as well as stability in the
  human factors affecting the child's emotional
  life and development, is essential, and it is
  difficult to attain this regularity and stability
  where a young child is shunted back and forth
  between two homes.

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• Only fifty four percent of those families that
  began with shared physical custody still retained
  it three and one half years after the initial
  separation. Families that moved out of the shared
  custody arrangement usually moved toward children
  residing with their mother.
• ELEANOR E. MACCOBY ROBERT H. MNOOKIN, DIVIDING
  THE CHILD SOCIAL AND LEGAL DILEMMAS OF CUSTODY
  103 (1992).