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Best Interest of the Child: How the Court Determines Custody

Deciding factors in a child custody case include the child's wishes, each parent's ability to care for the minor, and the best interest of the child.

Deciding factors in a child custody case include the child's wishes, each parent's ability to care for the minor, and the best interest of the child.

Child Custody

When a court decides a child custody case during a separation, divorce, or parental break-up, they consider a number of factors, but ultimately look at what arrangement is in the best interest of the child. Unless maintaining a relationship with a parent might harm the child (for example, if the child is being abused or neglected), the court will generally try to give parenting time to both the mother and the father.


What is the best interest of the child?

The court looks at many issues when determining what custody arrangement is in the best interest of the child. This is not up the parents or child to decide, however. In most cases, it is the court, or a team of trained child custody evaluators, who will make the decision.

Generally, the judge will consider all of the following factors when making a custody decision:

1. The child's wishes: If the child is old enough to have an opinion on what parent he or she wishes to live with, the court will consider his or her opinion. Issues surrounding the child's wishes factor in more heavily in custody cases involving adolescents. In cases where the child is too young testify in court, the court may appoint a guardian ad litem. The guardian ad litem serves as a formal legal voice for the child and advocates for his or her wishes and interests. The court does not consider the wishes of the child in all states, however. Likewise, if a child's choices do not match with his or her greater interests, the court will consider this when making a custody decision. For example, if a child prefers to stay with her mother because she resents rules and structure at her father's house, the judge will typically consider whether those wishes truly reflect the best interest of the child.

2.The child's medical and educational needs: If a child has exceptional medical or educational needs, the court will consider each parent's ability to address those needs on a day-to-day basis. Considerations may include the parents' work schedules, physical limitations, emotional state, and understanding of the child's needs. That said, an otherwise good parent will generally not lose rights simply because he or she works long hours; the court may simply adjust the schedule so that the working parent sees the child during his or her time off rather than regular school hours.

3. Family relationships: The court will strongly consider the child's existing relationships when making a custody determination. For example, if one parent has been absent for most of a child's life, then barring cases of abuse, neglect, or the inability of the other parent to care for the child, it would be unlikely for the court to award the absent parent sole custody. However, in cases where the child's existing primary caregiver is an active alcoholic or drug abuser; has neglected or abused the child; or cannot provide a home environment, the judge may give primary or sole physical custody to the current noncustodial parent. If the child has a good relationship with both parents, the court will generally make all efforts to ensure that both get to maintain their parental relationships. In some cases, this may require parents to undergo substance abuse counseling or pass a parenting class.

4. Safety: Safety is a major factor in child custody evaluations. As such, the court will often send a trained evaluator to each parent's home to assess the physical living space. Although the evaluator may provide a negative report for homes that do not meet basic standards of cleanliness, a messy or cluttered house will generally not harm a parent's chance at custody. Primarily, the evaluator will want to see that the child has a safe place to eat, sleep, and play. For example, an evaluator would likely give a negative report on a home where a ceiling has collapse or does not have a working bathroom.

5. Emotional preparedness. Although this standard is ultimately subjective, it can be an important deciding factor in child custody cases. To evaluate a parent's ability to care for his or her child emotionally, the court may ask each parent to meet with a social worker or psychologist, who will assess both parents' understanding of the child's level of development and needs. Along with understanding the child's emotional needs, the court will also look at each parent's attitude toward the other parent. If a mother or father works to foster a positive relationship between the child and her other parent, the court will look positively on this. Likewise, the court may look at each party's parenting skills and evaluate issues such as how the child is disciplined and cared for while in the home. The court will generally consider regular schedules, rules, and structure to be in the best interest of the child

6.Consistency: Typically, the court will want to keep the child's life as consistent as possible. This includes keeping siblings in the same household and, when possible, keeping children in their existing schools and neighborhoods. Thus, courts may be more inclined to maintain current custody arrangements unless there has been a significant change in the home environment. For example, the court may consider changing custody if a parent has been arrested or engaged in child maltreatment. Likewise, if the child is having difficulty in their currently placement--for example, acting out, under-performing in school, and asking to stay with the other parent--the court may be willing to change custody arrangements if the other parent may be better equipped to deal with these issues.

Finances and Child Custody

Finances generally do not play a role in child custody matters. In other words, if your former spouse makes more money than you do, this does not give him or her an edge in a custody case. Likewise, if your former spouse has not paid child support regularly, this will not necessarily preclude the court from giving him or her visits or parenting time since the parent/child relationship takes priority over finances. However, if your ex continues to fail to meet child support obligations and does not notify the court of the reasons for this--for example, illness or job loss--he or she may face legal consequences, including incarceration.

Your financial situation may only come into play if your situation leaves you completely unable to provide for your child, even with support from the other parent, as living without adequate resources is not in the best interest of the child. For instance, if you are homeless, do not have reliable transportation, or cannot provide food for your child even with public assistance programs, the court may favor the other parent, at least until you can get back on your feet. During this time, you will likely still be granted visits with your child, however.

Mistakes People Make in Child Custody Cases


Mental Health and Custody

If either parent has a diagnosed mental health condition, such as depression, anxiety, bipolar disorder, or schizophrenia, this will not necessarily preclude the parent from getting custody of the child. When a parent has a mental illness, the court will typically begin by looking at the parent's overall ability to carry out daily functions, such as cooking, cleaning, and providing the child with structure and discipline. The court may also ask to see the parent's mental health records to ensure that he or she is receiving regular care from a psychiatrist or counselor and that he or she is complaint with treatment recommendations. This will ensure that the child can have a stable, safe relationship with the parent with mental illness -- an important component the court will consider when determining the best interest of the child.

Likewise, if a parent has had a problem with alcohol or drugs in the past, this does not mean that he or she cannot obtain custody. While the court may ask the parent to complete a new substance abuse evaluation or ask for a drug test, as long as the parent is clean, sober, and able to meet the child's needs, past substance abuse is not a barrier to custody. However, if the parent is currently still abusing drugs or is in a treatment program, the court may deep supervised visits in the best interest of the child until the judge and the parent's therapists agree that he or she is fit to parent unsupervised.

Child Custody Disputes: How Common Are They?

Further Reading


airfloss2@gmail.com on October 30, 2015:

If spouse is stalling in financial income report to prevent divorce what can be done. Can a divorce by default be granted and spouse be put in contempt of court and his lawyer? How can you make a spouse help pay for school aftercare, clothes, shoes etc. Outside child support?

Helmut on December 20, 2014:

A Christmas letter from one of our past faimliesHello Eileen! I wanted to let you know that we think about you and the others at UPCCC ALL THE TIME! The care that our children got from you and your staff has been truly unparalleled by our experiences here in the US and we also miss all the friendships we had there. The children are growing fast..as they do and are thriving. Ashby is still an easy-going happy little boy, now just 21 months old. Saying lots of words and really communicating a lot through signing and talking. He is a real sweetheart. I really wish he could have stayed on at UPCCC longer; I feel like he really missed out. Adah will still talk your ear off until the cows come home. It's hard to get a word in edge-wise with her. She is still outgoing, athletic and full of energy. She misses Tongbo dearly and keeps asking if we can go back to Australia to visit Tongbo. Her teachers continue to be amazed by her skills with a pair of scissors something that Tongbo encouraged and taught her to do. She is now a star soccer player, outrunning all the other 4 to 6 year-olds and scoring lots of goals. We have switched daycares once since arriving here, from a Jewish one to a Lutheran one (almost all of them are religiously affiliated somehow). The class size was oddly too small at the first place for Adah, who needs lots of social interaction with peers her age. The new place is much better for her and she always has a smile on her face when I come to pick her up. Ashby is so easy-going that I fear he may get neglected, but he has bonded with his carers and seems to be happy. We have run into a lot of issues regarding the handing out of candy as bribes for homework in preschool, and at holiday times, and unhealthy snacks in general which really makes us appreciate the practices at UPCCC where these things were never a problem. It is so challenging here to ensure that they are getting healthy food all the time. It is no wonder that diabetes and obesity are such a problem when you see what everyone is eating, especially the kids. Most daycares provide lunches of chicken nuggets, pizza, macaroni and cheese, etc. and we had a hard time finding one where we could bring our own food. Perhaps this is true in Australia as well. The other quality that UPCCC has is the incredible attention to detail with respect to each child that the staff members have. I really felt that my children were being watched closely and any change in behaviour was noted and their needs were recognized and met. After reading a recent assessment of Ashby's development, it is clear that they have not recognized his ability to perform various milestones that are quite obvious to me. I list these things out not to complain, but to take the opportunity to give you all a BIG pat on the back. What you do is amazing and it is worth its weight in gold correction, platinum! Not just for the parents' peace of mind, but for the positive and nurturing influence you have on every child's life.We wish all of you a very, very happy Christmas and do truly wish we could be there with you. You stay close in our hearts and minds.With love,Andrea, Lex, Adah, and Ashby

Megan Coogle from Alabama on October 17, 2011:

Thanks for the information on this topic. It can be so confusing. Great hub.

Anna Green (author) from North Carolina on October 16, 2011:

Based on my knowledge and experiences, spanking--that is, as an open-handed swat--will most likely not jeopardize a parent's custody. Unless the parent is beating the child with a belt buckle, hitting her in the head, punching her, or using intense physical punishment that leaves welts, bruises, or injuries, spanking is not legally considered abuse, even if the child tries to paint it as such. False/unfounded abuse reports would not be used against the parent.

I hope this answers your question!

frogtalk on October 16, 2011:

I've heard that some kids will report their parents as abusive if the parents are simply spanking them. How does this affect the case?

Danielle McGaw from Manitoba, Canada on October 16, 2011:

Very informative! Thanks!

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