Child Custody Law & Procedure

Proving the “Best Interests of the Child”

When parents with minor children from their marriage decide to get divorced, or when unmarried parents decide to separate from one another, the parents will need to go through a legal process in which a court decides about child custody. Depending upon the state in which the parents file for divorce or petition for child custody, it may be possible for the parents to work together to develop a parenting plan, parenting schedule, or other document in which the parents decide how child custody will be awarded or allocated. In situations where parents cannot reach a conclusion or come to an agreement about child custody, then the court will turn to a variety of statutory factors in deciding about how child custody will be awarded or allocated.

Regardless of whether the parents develop a child custody plan, or the court decides about child custody, the parents and the court alike will need to rely on the “best interests” of the child standard. Every state has its own laws pertaining to child custody and the best interests of the child, and as such, it will be important for a parent to understand how family law in his or her particular state will define the best interests of the child.

Defining the “Best Interests of the Child” Based On a Variety of Factors

Every state has its own set of factors for determining what is in the best interests of the child, or in the child’s best interests. At the same time, states do have many common factors that can help parents or a court to determine what a child custody arrangement should look like. For example, if parents compare the “best interests of the child” statutory factors under Florida law and Illinois law, they will see that there are clear distinctions between the states while there are also similarities.

In general, lawmakers who draft factors to be used in determining what is in the best interests of the child are considering the child’s ultimate safety, health, and physical and psychological well-being. Lawmakers want to ensure that a child is in the best situation to adjust to school, to the community, and to the family situation. While states do have slightly different factors to be used in determining what is in the best interests of the child, most states generally use some version of the following factors:

  • Physical health of the parents and the child;
  • Psychological or emotional health of the parents and the child;
  • Each parent’s relationship with the child prior to the separation;
  • Child’s relationship with other family members, such as siblings and grandparents;
  • Child’s adjustment or acclimation to his or her current school, and the length of time the child has been in that school;
  • Whether child already has a reliable health care network in the location where the child currently lives, and the length of time child has used that pediatrician, dentist, and other health care professionals;
  • Child’s adjustment and acclimation to his or her current community, including a cultural or religious community, and the length of time the child has spent within that community;
  • Each parent’s willingness to facilitate a close and ongoing relationship between the child and the other parent (assuming that there is no history of abuse or neglect);
  • Each parent’s willingness to communicate with the other parent or to cooperate—even by electronic means—in order to share child custody and/or parenting time effectively;
  • Conversely, the amount of conflict that exists between the parents;
  • Each parent’s history of making important decisions about the child’s upbringing and long-term well-being;
  • Each parent’s history of providing day-to-day care for the child and making decisions about the child’s daily well-being;
  • Whether either parent has made attempts to disparage or belittle the other parent to the child directly or within the child’s living environment;
  • Each parent’s ability to provide necessities for the child, including a stable living environment, sustenance, and other necessities;
  • Ability for each parent to provide guidance to the child as the child grows up and comes of age;
  • Child’s wishes or child’s preferences, when the child is old enough to make such decisions or is mature enough to articulate a reasoned preference for child custody;
  • Domestic violence in the household, even when it has not been directed against the child;
  • Physical or emotional abuse or violence directed at the child;
  • History of neglect by one of the parents; and
  • Each parent’s criminal record, especially concerning convictions for domestic violence, sex offenses, or violent crimes.

To be clear, no single factor in child custody cases is dispositive—the court will not base its decision on a single factor alone. Rather, the court will look broadly at the various factors, and some may not be applicable to the family’s situation. It will then weigh the factors as appropriate based on the specific circumstances for a given family. Parents should also note the factors that are not listed above. For instance, courts never rely on gender stereotypes as factors in determining what is in the best interests of the child. To be sure, a court will not begin from a presumption that a child should be with its mother, for example.

Parents Will Need to Provide Evidence That Custody Is In the Child’s Best Interests

If a parent is petitioning for child custody or otherwise needs to show the court that she or he should be awarded child custody based on the “best interests of the child” factors, the parent will need to provide evidence. Proof that child custody is in the child’s best interests can come from a variety of sources, such as:

  • Witnesses who can testify about the factors, like family members, friends, the child’s teachers, religious or community leaders, and family friends;
  • Therapist, psychologist, and/or social workers’ evaluation;
  • Guardian ad litem, who may be appointed by the court to make a recommendation about child custody; and
  • Prior court records that speak to issues of abuse or neglect.

It is important for parents to remember that any actions during a child custody case ultimately may affect the outcome. For example, posting certain images or language on social media may be used against a parent in a child custody proceeding. Making negative comments about the other parent—especially to the child—can also hurt a parent’s standing in a child custody dispute. Parents should also remember that therapists, psychologists, and social workers want to ensure that a child custody situation is in the child’s best interests. Accordingly, if one of those figures makes a recommendation to the parent to be implemented, the parent should listen.

Parents who have questions about child custody and the best interests of the child should speak with a family law attorney in their state.

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