Best Interests of the Child
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http://www.uslaw.com/library/article/TNPFamilyCol0607.html?
Best Interests of the Child: The Key Standard for Custody
Determinations
In making its decision as to what is in the child's best interest, a court may
consider an array of facts and circumstances.
By Renee Campion
To determine who should have custody of a child, the court must base its decision on what is
in the child's best interest. While almost any fact, circumstance, or consideration can affect a
child's best interest, there are several scenarios common in many custody cases.
The preference of the child can be a crucial part of a custody decision. Courts cannot defer
their authority to the child--the subject of the proceeding, but the youngster's preference can
influence the court and affect how it decides the case. But it depends upon the state. Some
states grant the court discretion, allowing it to consider the child's preference, and if so, how
much weight or relevance to give it. Other states, under certain circumstances, allow a child
to have a "voice" in the proceedings.
The Child Must Be Competent to Testify
First and foremost, to testify in court, a witness--in this case the child--must be legally
competent. The child must understand the nature of the proceedings and know the difference
between truth and fiction. Then, any consideration of preference may still be discretionary
and an individual judge may elect not speak to the child, though the child may be of
sufficient age to be heard.
Courts often will appoint an attorney to be the child's voice, thus giving the child a part in the
proceeding without unnecessarily subjecting the child to the direct stress and reality of the
courtroom. Contrary to what has been portrayed in the media, judges do not generally ask a
child with which parent they wish to reside. The exchange is typically more conversational,
the judge listening to the child talk about his or her home life, school, friends, pets, etc. The
court may be required on the request of a party to have the court reporter record the
conversation between the judge and the child, which will then be read to the parties in the
courtroom. Many judges do not want to talk to the child, and some admit that doing so has Your Blog Subscriptions
never changed their perception of the case. Subscribe to blogs
In some states, children actually have the right at a specific age to petition to the court What is this?
directly for a change of custody. Recently, a child showed up in a court on her own, without
telling either parent, and said that she wanted to live with her father. The child was fifteen
and had been residing and doing well with her mother since the separation. She revealed that
Dad was willing to allow her to obtain birth control pills and travel to the Caribbean with
friends.
The Basis for the Preference Must Be Examined
Key to remember in all of this is that the court must examine the basis for the child's
preference and that if any part of a decision is based on a child's preference, the court must
find that the preference is in the child's best interest.
Material opportunities each prospective custodian can provide to the child are another factor
courts often consider when determining what is in the child's best interest. There is a
common misconception that custody will go to the individual with the bigger house, higher 10,000+ Law Job Listings
Lawyer . Police . Paralegal . Etc
income, more education, etc. This is not necessarily true. A higher standard of living can bring
certain benefits, but it is not a replacement for a dedicated loving parent. A parent struggling
Earn a law-related degree
with what shortcomings life may have dealt may be the better choice to meet the child's
basic needs and to act in the child's best interest. Courts can balance material inequities
through both the amount of child support awarded and/or access by the non-custodian.
Maternal Preference No Longer Automatic
9/12/2010 12:36 AM
Best Interests of the Child
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Courts used to recognize-and often made their custody decisions based almost solely
upon--what was called "maternal preference." That is, if a child was of tender years or less in
school age, the mother was usually awarded custody. In some states, this is specifically
prohibited. Still, it is not uncommon in a case involving an infant for breastfeeding to be a
factor. However, when a child is older, a court may not be as inclined to grant custody to a Practice Area
breastfeeding mother.
Zip Code:
In short, courts are not restricted to specific considerations when determining child custody,
but look to a variety of facts and circumstances that affect a child's best interest. Courts have
much discretion and can generally consider any evidence that affects a child's well being,
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whether physical or psychological.
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9/12/2010 12:36 AM
Best Interests of the Child http://www.uslaw.com/library/article/TNPFamilyCol0607.html?area_id=15

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