The often uttered phrase “the Best Interests of the Child” is the governing standard by which Courts decide a custody arrangement for two disagreeing parents. Neither individual parent’s interest is considered, nor the goal of achieving equity between the parents. A parent’s gender, nor a parent’s immigration status, will be considered preferential. Instead judges use the Best Interest standard when making legal and physical custody determinations — and visitation or “timeshare” orders. Frequent and continuing contact with both parents where they each share the rights and responsibilities of the child is the overall, long term goal. Although courts have wide discretion within the standard to make choices which foster the child’s health, safety and welfare, or more specifically security and emotional development, several common factors are considered.
The Child’s Age
Children’s needs change as they grow and develop. So age is often the starting point for the Court. A young infant who is nursing will have different needs than a teenager who is more independent. Especially when determining a timeshare schedule for the week, younger children are benefited by more frequent exchanges between parents, especially during infancy or toddlerhood. During this developmental phase, “object permanence,” or the concept that “objects” (people) continue to exist even when they cannot be seen, heard, or sensed, is still forming. For this reason, it is critical to see both parents frequently. Older children, such as teens, may benefit from less frequent, more stable schedules such as “week on, week off.” A schedule such as alternating weeks is still considered “frequent and continuing” contact in this instance.
Divorce can be a time of woeful uncertainty for everyone involved. Providing a sense of normalcy and stability for children is a top concern. The status quo or existing relationship between parent/child can be a top factor to consider. Who is the primary caregiver? Evidence of direct child care responsibilities include planning and providing meals, arranging health care, involvement in school and extracurriculars, etc. is considered by the Court – which is not to say that the “out parent” is not going to be given substantial custodial time. Courts often implement a ramp up period for the non-primary parent by adding on more custodial segments if the child is being benefited. Factors such as race, religious practice, sexual orientation, disparity in income and physical handicap are not considered determinative by the Court. Judges will often favor child custody decisions reached by stipulation between parents and parents are required to attempt mediation before coming to Court. You can help guide the process by learning how to prepare for child custody mediation.
In certain cases, Courts will deviate from the “frequent and continuing” model where important overriding parenting limitations are present. Substance abuse, past domestic violence, or dangerous mental health issues are all factors that a judge will take into consideration when making custody orders. With these circumstances, the court must be presented with evidence and not merely allegations. Evidence can include police records, text messages, testimonials, photographs, videos, recordings, and records of hospitalization or inpatient services.
Another new and unique consideration that has arisen is COVID-19. If one parent is behaving in a way that puts children at risk, or if a parent or child has an underlying health condition that requires heightened diligence during this Pandemic, physical custody preferences might be impacted. Again, documented evidence of these concerns must be presented.
While the Court must consider the best interests of the child when making decisions regarding custody and visitation, the standard and the law continues to evolve to include factors such as a child’s preference, challenges around parental relocation to another town or state, and the role of technology in child custody. You will be well served to seek professional legal advice about how the Court will view the specific issues in your custody dispute and how to present your best case.