The Best Interest Standard in a Child Custody Case

Whether a case is a divorce case, a change of custody case, or a paternity case, a judge must choose who gets custody of a child based “solely in accordance with the welfare and best interest of the child.” We generally refer to this standard as the best interest standard. This means the most important thing the judge considers is what works best for the child, not what works best for the parents.

Factors a judge may consider

A judge may consider any factor relevant to determining what is in the child’s best interest, including:

  • each parent’s personal and financial ability to provide a safe, appropriate, stable home for the child, and to provide for the child’s other material needs;
  • each parent’s “moral fitness,” including each parent’s character and reputation in the community;
  • the past and current relationship between each parent and the child;
  • which parent would more likely foster a good relationship between the child and the other parent;
  • whether a parent has a history or alcohol or drug abuse;
  • whether a parent has committed domestic violence against the child, or against any person or other member of the child’s household;
  • whether one parent has a history or sexual abuse or is a registered sex offender;
  • how to best maintain relationships with any of the child’s siblings;
  • how to best maintain the child’s relationship with extended families; and
  • the child’s reasonable preference.

No two cases are alike. Other factors may be considered, specific to each case.

Factors a Judge May Not Consider

While a judge may consider any relevant factor in making the best interest determination, a person’s gender is not considered a relevant factor. Also, the judge may not simply presume that it is in the child’s best interest to stay with the person who has acted as the child’s primary caretaker.

Additionally, a judge may not determine that it is in the child’s best interest to award custody to a parent based solely on the fact that one parent makes substantially more money than the other. 

Bottom Line

Custody decisions are made based on what is in the child’s best interest.  This determination is a weighty, fact-intensive, case-by-case determination, which is unique to each case.

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