6 Factors Considered In "The Best Interests Of The Child"

6 Factors Considered In “The Best Interests Of The Child”

by Oct 25, 2017Child Custody, Divorce

The phrase “the best interests of the child” is one of the most commonly heard in the world of divorce when children are involved. How it is interpreted, and more importantly, applied in a divorce case can have a huge impact on the future of both children and parents for years afterward. But what does it mean, exactly?

While there is no singular definition or set of predetermined rules or guidelines at either a federal or state level, there are a common set of factors that many judges use when determining what constitutes the best interests of the child in a particular case.

The following six factors are meant to illustrate some, but not all of the things a judge will consider when trying to determine child custody and/or visitation rights.

1) Age

At one point in time, many judges went by a “tender years” doctrine that assumed young children were better off with their mothers by default. While this idea is increasingly being given less weight or ignored completely, there are still some judges that believe it to be true.

The tendency is often more pronounced when the mother has already established herself as the primary caregiver in the family, and has demonstrated a lack of interest or attention from the father.

Finally, in cases involving a baby that is still nursing, that will likely outweigh almost all other considerations until such time as the child is no longer solely dependent on the mother for care.

2) Parent’s Living Situation

This can be tricky and often seem unfair, because it’s not uncommon for the parent who remains in the family home (assuming one does and it’s not being sold) to get custody. This is often because judges believe it allows children to maintain some stability and continuity in their lives.

However, in an odd sort of reverse logic, if one parent is clearly determined to be more fit than the other and awarded custody, that spouse may also be awarded the family home in the divorce for the exact same reasons mentioned previously.

Spouses that move into temporary housing (staying with a friend, living in a hotel, etc.) or move far away from the current family home are much less likely to be awarded custody and visitation rights until they reestablish a more child-friendly living situation.

3) Relationship With Children

Sometimes, it takes an event like a divorce to inspire a parent who until that point had not been as active or present in their children’s lives to have a change of heart.

While this can be a legitimate consideration, judges look very carefully at how involved both parents were prior to the divorce and use that as a baseline. In short, if you were a demonstrably good parent before the divorce, you have a much better shot at custody or visitation after the divorce.

4) Child’s Preferences

This is another very delicate, often fraught factor in the consideration of the best interests of the child.

If a child is old enough, typically age 12 or older, a judge may ask them in private if they have a preference which parent they live with. Some states actually require courts to consider children’s views, while other strongly disapprove of including them in the process at all.

The biggest danger here is that a child may prefer one parent, but be objectively in better care with the other. It’s a difficult factor to account for, and one many courts struggle with.

5) Stability

It’s not a secret in the legal community that judges are very big fans of the status quo, especially regarding children and maintaining a recognizable continuity during such a traumatic event like divorce.

The parent who is in the best position to maintain that stability and consistency during and after the divorce process has an advantage in the best interests of the child considerations.

6) Abuse Or Neglect

It should go without saying of course, but if there’s clear evidence that either parent has abused or neglected the children, a judge will limit that parent’s contact with the children.

Every situation is different, so the judge may consider other factors in deciding custody in your case. No matter what the circumstances are, however, child abuse and/or neglect will have serious repercussions in the offending parent’s outcome and may possibly even result in prosecution.


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