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Minnesota Statutes 2003, Table of Chapters

Table of contents for Chapter 257C

     257C.04 Best interests of a child.

    Subdivision 1.    Custody factors.  (a) If two or more

 parties seek custody of a child, the court must consider and

 evaluate all relevant factors in determining the best interests

 of the child, including the following factors:

    (1) the wishes of the party or parties 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 party and

 the child;

    (5) the interaction and interrelationship of the child with

 a party or parties, 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;

    (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, subdivision 12, 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 interests

 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; and

    (12) the effect on the child of the actions of an abuser,

 if related to domestic abuse, as defined in section 518B.01,

 subdivision 2, that has occurred between the parents or the

 parties.

    (b) The court may not use one factor to the exclusion of

 all others.  The court must make detailed findings on each of

 the factors and explain how the factors led to its conclusions

 and to the determination of the best interests of the child.

    (c) The court must not give preference to a party over the

 de facto custodian or interested third party solely because the

 party is a parent of the child.

    (d) The court must not prefer a parent over the de facto

 custodian or third party custodian solely on the basis of the

 gender of the parent, de facto custodian, or third party.

    (e) The fact that the parents of the child are not or were

 never married to each other must not be determinative of the

 custody of the child.

    (f) The court must consider evidence of a violation of

 section 609.507 in determining the best interests of the child.

    (g) The court must not consider conduct of a proposed

 custodian that does not affect the custodian's relationship to

 the child.

    (h) Section 518.619 applies to actions under this section.

    Subd. 2.    Factors when joint custody is sought.  (a)

 In addition to the factors listed in subdivision 1, if either

 joint legal or joint physical custody is contemplated or sought,

 the court must consider the following relevant factors:

    (1) the ability of the parties to cooperate in the rearing

 of the child;

    (2) methods for resolving disputes regarding any major

 decision concerning the life of the child and the parties'

 willingness to use those methods;

    (3) whether it would be detrimental to the child if one

 party were to have sole authority over the child's upbringing;

 and

    (4) whether domestic abuse, as defined in section 518B.01,

 subdivision 2, has occurred between the parties.

    (b) If the court awards joint legal or physical custody

 over the objection of a party, the court must make detailed

 findings on each of the factors in this subdivision and explain

 how the factors led to its determination that joint custody

 would be in the best interests of the child.

    HIST: 2002 c 304 s 4

Copyright 2003 by the Office of Revisor of Statutes, State of Minnesota.

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MT Riffle

3. Have Jessica's best interests been addressed?

The Sirokys contend that the District Court should have made a "best interest" analysis under § 40-E-109, MCA, outside the restrictions, preferences or limitations of the ICWA.

However, since we affirm the District Court's determination that the ICWA applies to this adoption, a determination of "best interests" under Montana law would be inappropriate.

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In the Matter of the ADOPTION OF KEITH M.W. Native Village of Napaimute Traditional Council, Appellant, v.Terence W. and Lucy W., Appellees.

.*9 I disagree. ..The damage that can be done to children by disrupting psychological ties between adoptive parents and children is well recognized. As we stated in Hernandez v. Lambert, "[a]doptive custody results in the rapid development of lasting and powerful psychological ties between adoptive parents and children, especially young children. Once formed, these bonds can seldom be severed without irreparable damage to the child's well being." [FN7] ..I believe that the condition in this case must be construed at all times to be subject to the overriding interest in the welfare of the child. . What it contemplated was that the Wilsons would go forward with the adoption, but if the adoption failed it was understood that they would not stand in the way of the resumption of custody by the natural mother. As so construed, the condition is fully consistent with existing remedies that are available following the failure of a contemplated adoption.

My response to this is that the primary source of public policy employed by this court should be the Alaska Statutes. ICWA must be followed where it applies. But I do not think that ICWA should be regarded as a source for public policy based rulings where the periods it mandates do not apply and differ from the express provisions of Alaska law.

Well Being of child:  according to court case; European standards aren't to be applied to well being of Indian children.   What does Convention on Rights of Child say?  

Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community,

Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding,

… Bearing in mind that the need to extend particular care to the child has been stated in the Geneva Declaration of the Rights of the Child of 1924 and in the Declaration of the Rights of the Child adopted by the General Assembly on 20 November 1959 and recognized in the Universal Declaration of Human Rights, in the International Covenant on Civil and Political Rights (in particular in articles 23 and 24), in the International Covenant on Economic, Social and Cultural Rights (in particular in article 10) and in the statutes and relevant instruments of specialized agencies and international organizations concerned with the welfare of children, '

Bearing in mind that, as indicated in the Declaration of the Rights of the Child, "the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth",…

Taking due account of the importance of the traditions and cultural values of each people for the protection and harmonious development of the child,

Article 2

• States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion
• ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members.

Article 3

1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

Article 20

1. A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.

2. States Parties shall in accordance with their national laws ensure alternative care for such a child.

3. Such care could include, inter alia, foster placement, kafalah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children. When considering solutions, due regard shall be paid to the desirability of continuity in a child's upbringing and to the child's ethnic, religious, cultural and linguistic background.

Article 30

In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language.

Article 33

States Parties shall take all appropriate measures, including legislative, administrative, social and educational measures, to protect children from the illicit use of narcotic drugs and psychotropic substances as defined in the relevant international treaties and to prevent the use of children in the illicit production and trafficking of such substances.

Article 36

States Parties shall protect the child against all other forms of exploitation prejudicial to any aspects of the child's welfare.

Does the Convention on the Rights of the Child take responsibility for children away from their parents and give more authority to governments?

On the contrary, the Convention upholds the primary importance of parents' role and refers to it repeatedly throughout the document. It says that governments must respect the responsibility of parents for providing appropriate guidance to their children, including guidance as to how children shall exercise their rights. And it places on governments the responsibility to protect and assist families in fulfilling their essential role as nurturers of children.

What the Convention says:

States Parties shall respect the responsibilities, rights and duties of parents...to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention (article 5).

States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child (article 18.1).

States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and shall ensure the development of institutions, facilities and services for the care of children (article 18.2).

From MT case, re marriage of S.

¶33  The ICWA represents the federal remedy to a nationwide problem.  The problem originates from what is in the majority of cases a naturally predisposed inability of states to consider fully the best interests of Indian children in custody proceedings, specifically in the context of their Indian heritage.  In particular, Congress found after extensive hearings that  (Can we research to see how extensive these hearings were - and sue?)  "States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families."  25 U.S.C. § 1901(5).  The concerns and resultant need for the ICWA are based even more on the fact that, as Congress pointed out, "there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children

and that the United States has a direct interest, as trustee, in protecting Indian children who

are members of or are eligible for membership in an Indian tribe."  25 U.S.C. § 1901(3).  

Mont = IN THE MATTER OF C.H., A Youth in Need of Care.

However, while the best interests of the child is an appropriate and significant factor in custody cases under state law, it is improper to apply a best interests standard when determining whether good cause exists to avoid the ICWA placement preferences, because the ICWA expresses the presumption that it is in an Indian child's best interests to be placed in conformance with the preferences.

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