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It's All in Your Child's Best Interests, Right?

If you are going through a divorce or child custody dispute, you have probably heard the phrase best interests of the child. Like you, courts consider your child's safety, happiness and well-being to be the paramount factor in their child custody and parenting time decisions. Yet, the standard is nebulous. You and the other parent may have very different notions of what your child needs. Who wins?

What Does Best Interests Mean?

Judges have a long list of factors to consider when determining what is in a child's best interests for child custody and parent-time schedules, including:

  • The relationship between each parent and the child and how much bonding time is necessary to maintain that relationship
  • The parents' role in the child's life, including their role in caretaking
  • How likely each parent is to allow the child time with the other parent
  • How the parents have conducted themselves, including whether they have exposed the child to harm
  • The child's physical and emotional needs
  • How close the parents' homes are to each other
  • The parents' ability to cooperate with each other
  • A child's wishes, if the court considers the child sufficiently mature (though this is rarely a determining factor)

Taking Control of the Decision: Working Together

If you and the other parent are able to work together to come up with a plan for legal custody (the right to make decisions about your child) and physical custody (where the child lives), there is a good chance that plan will be in your child's best interests. You have a much better idea of what your child needs to thrive than a judge who has never met him or her.

These discussions take energy. They require you to put your own feelings aside and concentrate on what matters most: your child's well-being. Now is not the time to fight for sole custody simply because you want more time with your child. Instead, put yourself into your child's shoes and consider their needs when making decisions.

When a Court Decides: Proving Your Plan Is in Your Child's Best Interests

Working together may be an impossible endeavor if you are going through a contentious divorce or if there is a power imbalance.

When a court must decide, it is in your best interests to determine what you believe should happen and provide evidence to support your wishes and concerns. Is there evidence of abuse or other danger to the child? The court needs to hear it. Who has been the primary caregiver? What is the child currently accustomed to? Where will you live? These are questions you will need to answer.

It is common for people to bring in witnesses, such as teachers and neighbors, to provide testimony. The court may also appoint a guardian ad litem to observe your child and provide a recommendation to the court, or have a therapist or social worker evaluate your child. During these evaluations, and throughout your case, it is vital that you do not do anything that could affect your custody rights. Do not badmouth the other parent, refuse to let him or her see the child (unless the child is at risk, in which case, you should involve the court), give any indication that child support plays into your desire to see your child more, or take any action that could be seen as morally damaging.

Finally, consider hiring an attorney experienced in child custody. An attorney can help you understand your options and defend your interests in court. Remember, in family law, you don't necessarily get what's fair. You get what you are able to negotiate or prove to the court. The court doesn't know your family and will base their child custody decision on what it believes to be in the best interests of your child. You do not want that to be different from what you know to be in your child's best interests. An attorney can help you tell your story.

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