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Best Interest of the Child: How Courts Decide Custody Cases

In just about any family law case involving children, courts are guided by the Best Interest Test. It is the job of the court to determine what is in the Best Interest of the children and then order it.


The courts determine what is in the best interest of the children by considering the evidence put before them. So, when facing a custody fight, a party would be wise to consider what evidence the court cares about.


Here are some of the areas that a mom, dad, grandparent or other party seeking custody or access to the child needs to be ready to put on evidence of:


1. What are the physical, psychological, emotional, and educational needs of the child, and how does the parent plan to meet them?


If your child has a particular need, you need to have evidence ready to show the court as to how you will meet the need. For example, if your child has dyslexia, you need to have a plan for how you will address the issue.


2. Are the parents able and willing to give first priority to the welfare of the child?


A party to a custody case should have evidence of how he or she has made the needs of the child a high priority in his or her life. A history of “dumping” the children off with others at every opportunity can often look bad in open court. An unwillingness to forego drinking to excess when in possession of children can also undermine a custody case.


3. Are the parents able to work together for the child's best interest?


Most courts want parents to work together. Judges do not want to micromanage the lives of the children at issue in their cases. If the parties can work together, there should be evidence to show the judge. Often, however, one or both parties to come to court with evidence of how the other party refuses to work with them. If you think the other party will claim that you are antagonistic or unwilling to work together, you need to have evidence demonstrating that you are not the trouble-maker.


4. What is the history of the parents with the raising of the child so far?


The conventional wisdom is that whoever has been the primary caregiver of the child will be allowed to continue to be the primary caregiver of the child. But that is not always true. In many cases, life will be quite different after the conclusion of a custody case — particularly a divorce. A stay-at-home mom may now enter the workforce. That may rob her of the argument that she will be able to continue to do the things with the child that she has done thus far. Additionally, if the primary caregiver is shown to be a hard-drinking drug abuser, he or she may very well lose the position.


5. How close do the parents live to each other and how close do they plan to live to each other in the future?


Traffic, school, and work schedules can make it impossible to have a shared schedule that would be possible if the parents lived within the same school district and had flexible jobs. Additionally, as children get older, there are often more challenges, since school activities tend to be more mandatory than those of the YMCA or other recreational sports outlets.


6. What are the desires of the child?


There is a lot of misunderstanding about this. Many people — even some attorneys — repeat the refrain, “Once the child is 12, he or she can decide.” That’s simply not the law. A complete discussion of the “Being 12” impact on child custody is beyond the scope of this post, but the short version is this: What a child wants to do may have some impact on a custody case, but it is NEVER the sole deciding factor.


7. Any other relevant evidence.


Finally, remember that this is not an exhaustive list. Any admissible evidence of anything that impacts the Best Interest of the child can be considered by the court.


Be ready to help your attorney with identifying and gathering the evidence on all of these issues, and you will help your case and probably save some money.

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