Best Interests of the Child

by Lisa Gelman
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Divorce can be a full-blown crisis for children as their once stable foundations are turned upside down. Kids will want to know where they’ll live, when they’ll see the non-custodial parent and how their lives might change.

Most spouses are able to settle their issues privately and make decisions regarding custodysupport and property division without a judge. However, there are times when highly contested issues may need to be resolved by a judge if either spouse initiates and proceeds with litigation.

It’s important to note, however, that litigation is costly, a matter of public record and could be potentially damaging to some relationships.

That said, where custody is challenged, the court will seek to make a determination that is in the best interests of the child.

This concept of the best interests of the child is a legal standard, and in order to apply it to your custody proceedings, a judge will have to consider various factors. This article is designed to give you an idea of what the best interests of the child means, and how the courts make such a determination.

One should appreciate that the best interests of the child is a fluid concept that considers the physical, emotional, intellectual, moral, and social wellbeing of the child. It is fluid because what is best for the child at age three might not be the same at age ten. Moreover, the parent’s situations are fluid as well. Jobs might change, parents re-marry, and sometimes a parent might even relocate. Additionally, the court must consider both the short term, daily, wellbeing of the child as well as their long term needs. As you can imagine, determining the best interests of the child can be rather complex.

Factors the Court Considers

An all-inclusive list of factors that guide the court in determining the best interests of the child does not exist. Several cases, however, provide a list of applicable factors, but the judges are free to consider any factor they deem relevant. As you can imagine, judges also have their own experiences and attitude that can also influence their decision. Regardless, there are three factors that are universally applied by the courts.

The first is the concept of preserving the status quo. This idea is weighted heavily when the court is asked to make an interim custody order; however it is a less compelling factor for final orders. Status quo refers to both the geographic location of the child as well as the relationships and way of life established for the child. Preserving the status quo simply means to keep the child in the most similar situation to what they are presently experiencing. Where the child has currently been living and the nature and extent of the child’s communication and exposure to each parent will be considered in determining the best interests of the child.

Second, the court will consider who the primary caregiver was during the actual marriage. The primary caregiver is the parent who typically took the child to medical appointments, fed the child, put the child to bed, and made decisions regarding health, safety, and education. The court will be more inclined to grant primary custody to the parent that played this role. There will be a preference to allow this person to enjoy day-to-day custody. However, in some instances, particularly when both parents work, or both parents are equally involved in the child’s life, neither parent may truly be classified as a primary caregiver.

The third factor is that the law favours keeping siblings together. Typically, the courts will rule against any efforts to split up siblings. There is even a preference to maintain relationships between stepsiblings as well.

Evidence Considered

In addition to these three factors in formulating a decision of what arrangement will be in the best interests of the child, the court will also consider the magnitude and reliability of all evidence presented. Evidence can speak to everything from the child’s views, to the religious and cultural upbringing of the child, as well as the physical and mental health of the child. Basically the court will take a look at anything and everything that might be relevant in helping to determine the best living arrangement for the child.

The court will also need to know how the parents plan to care for and raise the child. This is typically provided in a detailed written document known as a ‘parenting plan’ that addresses issues, such as:

– the manner in which decisions about the child will be made;
– how information will be shared between parents;
– the amount of time each parent will spend with the child; and
– how parenting issues/conflicts are to be addressed

Change is Possible

As stated previously, it’s important to remember that this is a fluid and ever-changing standard. A child’s physical and emotional needs are constantly changing, and a parent’s ability to provide may also change.

Please keep in mind that custody can typically be revisited at a later date and that the court can choose to modify or vary an existing order if it believes doing so is also in the best interest of the child.

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