Best Interests of the Child

What if parents cannot agree on who has physical custody of the children? The standard the court uses to analyze this difficult question is known as the “best interest of the child”. This is an area that the court would prefer the parents to work out, among themselves a reasonable custody plan. However if the must get involved there are five (5) Relevant Factors, including:

1. the wishes of the child’s parents as to custody

2. the wishes of the child

3. the interaction and relationship of child with parents, siblings or other significant people

4. child’s adjustment to school, home and community

5. mental and physical health of all individuals.

Certainly, an older child’s wishes will be given more weight than a younger child. What is the nature of the relationship with the child and the custodial parent? The noncustodial parent?  The court will also look at the present home environment and whether the child is prospering within that environment.

Is the child adjusting well in school, getting along with other children, keeping his/her grades up?

Are there any significant issues with respect to the ability of a parent to care for the child? Is there evidence, for example, of drugs/alcohol that could impede the child’s growth?

The court does not take any of these issues lightly. Indeed the decision to either remove a child from one parent or to award custody to the other is, arguably, one of the most important, most difficult, and most emotionally charged decisions that a court can make.

This is another reason why, if the parties would agree to it, mediation is a preferable approach to the challenges of divorce and custody. Mediation is a key tool that will allow the parties to look past their own self-interests, past their emotions, past their anger for the other parent and, instead, focus on the best interests of the child.

If however, the parties cannot agree to mediate the matter, each parent would be well advised to find an attorney who has the ability to work well with the other parents attorney to resolve the matter in the best interest of all the parties.

What do you think? Leave a comment. Let’s discuss!


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