After families separate, parents must decide where the children will primarily live. Some families can settle this among themselves while others require court intervention. Often parents assume the court will award custody to the mother however, that’s not necessarily the case.
Put simply, the Best Interests of the Child standard simply means that the court looks at certain factors to determine what is in the best interest of the children involved in the family situation. Even when parents have an agreement, the court still must make a finding that the agreement is in the best interest of the child. Often parents become disgruntled because they believe they are in the best position to decide what is in the best interest of their children. Unfortunately, family litigation often results in both parents with opposing opinions about what is in the best interest of their children and the court must step in to make its determination.
The court may consider a number of factors in its analysis. Most commonly the court focuses on the following factors:
1) Primary caregiver – Who is the person who takes care of the child? Who handles the child’s day-to-day activities?
2) Fitness – What are the psychological and physical capacities of the parties seeking custody? Was there evidence of abuse – physical, emotional, or otherwise?
3) Character and reputation
4) Agreements – Is there a custody agreement already in place?
5) Ability to maintain family relationships – Who will be best able to help the child keep family relationships, including relationships with the other parent’s family?
6) Child preference – Does the child have a preference? Some courts will interview the children outside of the presence of their parents. The older the children involved the more weight is given to their preference.
7) Material opportunity – Which parent has the financial resources to give the child more things?
8) Age, health, and gender of child
9) Residences of parents and opportunity for visitation – How close do the parents live to each other, extended family, school, etc?
10) Length of Separation – How long has the parent been separated from the child?
11) Any prior abandonment or surrender of custody – Is there a history of one parent walking out and leaving the other parent to cope with the child and the home?
12) Religious views – These will be important in the court’s decision only if you can show that religious views affect the physical or emotional well-being of the child. There is no consideration made for non-religious families.
13) Disability – A party’s disability is only relevant to a custody decision if the disability affects the best interest of the child.
In addition to the above factors, the court may also consider: Willingness to share custody; fitness of parents; child’s relationships with each parent; ability to stabilize child’s school and social life; employment considerations (eg, long hours, extensive travel, etc); age and number of children; financial status; benefit to parent; sincerity of parent’s request for custody.