Understanding The Best Interest Of The Child

The "potential for the child to be abused" is the primary consideration when deciding the best interest of the child. A child should be safe from abuse. Evidence that shows the potential for the child to be abused is greater when the child is in the custody of a certain person will make it less likely that the Court will give that person custody. Sometimes, the Court will award limited visitation or order other protective terms like supervised visitation.

Most parents love their children. Courts want to know about factor number 2: the love, affection, and other emotional ties between each party and the child. If the child struggles with emotional attachment to a parent, that does not mean the Court will give that parent less custody time.

If the emotional attachment is an issue in a custody case, a Court may order the parents or child to undergo an evaluation by a mental health professional. The parents could agree to have the child evaluated independently. Mental health professionals can provide strategies to parents and children for ways to build better emotional bonds. If a mental health professional conduct a court-ordered evaluation and recommends specific steps to improve the child's relationship with the parents, the Court might include those steps in a custody order.

The third factor is lengthy and hard to read. It considers the "capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child." Breaking this factor down makes it easier to understand.

Capacity and Disposition

Capacity comes from the word capable. A parent's capacity is what they are able to do. Is the parent able to give love, affection, and spiritual guidance? Is the parent capable of continuing the education and raising of the child?

Disposition is a person's inherent qualities of mind and character. It is like a parent's nature. Some people may naturally be more spiritual and willing to offer spiritual guidance. Some people do not have the patience to help with homework, but others may enjoy teaching.

Spiritual Guidance, Continuing Education, and Rearing of the Child

This third factor breaks down to the many different ways that parents watch over children, teach them, and care for them. Rearing of the child simply means bringing up and caring for a child until they reach adulthood.

The law does not require parents to be spiritual. A parent should be willing and able to respond to a child who seeks spiritual guidance. Spiritual guidance can be teaching the child the difference between the truth and a lie, or how to follow "The Golden Rule," treating others the way you would want them to treat you.

The law does require minor children to attend school in most situations. A parent has the duty to make sure the child attends school or completes home-school or virtual assignments.

The Court will consider the "capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs." Capacity is not limited to whether the parent can afford to buy these things. A parent may have the ability to purchase them, but not the disposition to do so.

A child should have access to food and clothes. Parents should provide for medical care, when it’s needed.  Evidence that a parent is unable or unwilling to provide the child with food or clothing, or take the child to the doctor when necessary, will weigh against that parent in the Court's custody decision.

The Court will consider the "length of time the child has lived in a stable, adequate environment, and the desirability of maintaining the continuity of that environment." A child needs a stable, adequate environment.  Courts want to keep children in this kind of environment. A change in the child's environment can be destabilizing for the child. In general, the Court will favor a custody arrangement that limits major changes in the child's environment.

The Court will consider "the permanence, as a family unit, of the proposed or existing custodial home or homes." This means a home with people the child has come to know as family. A family unit can include parents, step-parents, siblings, and other relatives who live in the home. Permanence refers to people who have lived together for a considerable length of time when the makeup of that family is not likely to change.

This factor does not mean that a parent cannot get remarried or that the family unit cannot grow. Courts do tend to look less favorably upon unmarried cohabitants. This is not a moral issue. Unmarried cohabitants reflect a less permanent family unit.

It’s important to remember that these factors are more serious when they have a greater potential to negatively impact the child’s life.  If people living in the child’s home are not part of the family, those people may be more likely to disrupt the child’s life.  

The law does not allow child custody orders to control a parent's lifestyle or choices. But, some factors consider the parent’s lifestyle and how it impacts the child’s environment. Courts consider whether a party's moral fitness (or unfitness) negatively impacts the child. Children may be affected by behaviors they see, hear, or witness. They may also be impacted by unintended consequences of a party's behavior.

Sometimes, the parent's history has a minimal impact on the present issues of child custody. A parent’s history of substance abuse, violence, or criminal activity may be relevant if their current behavior has the potential to impact the child’s life negatively.

If either parent’s mental or physical health impacts the child’s life, the Court needs to know.  Evidence that an abused parent suffers from the effects of past abuse by the other parent is not a reason for the Court to deny the abused parent custody.

Courts want to know about the child’s home, school, and community history.

Will the Court let the child choose? No. But, the Court may consider the "reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference." This means the Court may consider the child’s choice, if the Court decides that the child is old enough to make a choice. There is no "legal age" at which a child can make a choice about custody.

The Court will give the child's preference stronger consideration if the choice is reasonable. In other words, the child needs to be able to state why they would prefer a certain custody arrangement.

The Court will consider the "willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party." Basically, each parent should encourage the child to develop a relationship with the other parent in most cases. If the child "doesn't want to go," it's the parent's job to help the child understand why time with the other party is important.

There is an allowable exception when "objectively substantial evidence of specific abuse, reckless, or illegal conduct has caused one party to have reasonable concerns for the child's safety or well-being while in the care of the other party." This does not mean a parent thinks that the other party's behavior puts the child at risk. There must be a lot of proof of the other parent's specific acts of abuse or unsafe conduct.

Courts consider the distance between the parents’ homes in deciding what the best custody arrangement is for the child. If the parents live close, the child may have more frequent custody or visitation with both parents. If the parents live farther away, the schedule may provide for less frequent exchanges, to limit the amount of time the child spends traveling between homes.

The Court will consider "the responsibility for care and rearing of the child previously exercised by each party." At home, which parent usually gives the child a bath? Which parent usually brings the child to school? Who makes sure the child’s homework is done? These things are the responsibility exercised by each parent.