If you are going through a divorce or separation, you may have come across the phrase, “The best interest of the child.” This is because it is the criteria that the court uses to grant custody. The best interest of the child is a standard phrase used in court to make decisions affecting a child with regards to, among other issues, child custody, adoption, visitation, and guardianship. It’s a subjective, discretionary test where all situations affecting the child are considered.
Whether parents and their lawyers resolve child custody issues out of court through negotiation or the decision is left to the judge in a family court, the main focus in any custody case is always on a solution that’s in the best interest of the child.
So, here is the question, how does the court (or lawyers) determine the child’s best interest?
It is highly unlikely that a single factor will determine custody. The court often uses a range of factors to decide the parent that’s suitable to be the custodial parent. These factors include:
Domestic violence
When there’s evidence that one parent has physically or emotionally abused the other, especially in front of the child, the perpetrating parent is less likely to receive custody. The same applies to when a parent abuses, neglects, abandons, or interferes with visitation rights of the other parent.
Drugs and alcohol
If there is evidence of substance abuse, the parent with the abuse problem may lose custody to the parent who doesn’t abuse drugs or alcohol.
Primary caretaker
A parent who was the primary caregiver of the child before the separation or divorce may be given priority in custody dispute. For instance, if one couple spent more time with the child while the other one was working, they will be more likely to be awarded custody, even though they both stayed in the same household.
Stability
Priority in child custody cases often goes to the parent who is first granted custody either through a voluntary agreement between the couples or by the court. For example, if one parent leaves home and the other raises the child for a while without the other one being present, the judge would consider the stability of maintaining the status quo instead of having the child move in with the other parent.
Mental and physical health of parents
If one parent has an untreated mental disease, emotional instability, or personality disorders and/or poor parenting skills, the court may consider giving the other parent custody. The same applies to when one parent is suffering from severe physical disability/illness that significantly impacts their ability to take care of the child.
Child’s preference
Depending on the age of the child, the court may take into consideration who the child wants to stay with. Some states like Ohio aren’t specific with age; however, for many states, the closer the child is to 18 years old, the more weight their decision carries in court. But even so, the court will still consider why the child prefers staying with one parent over the other. If a child wants to live with one parent because they do not punish them or they give them money, the court may deny their wish because it’s not in their best interest.
It’s always advisable to speak to a lawyer before pursuing child custody cases. Attorneys at Modern Law can guide parents, and help them get the most from the process.
