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What Factors Inform the Best Interest of the Child Standard?

Below are some factors that may be considered when evaluating what custody arrangement is in the best interest of the child:

  • Do both parents work outside the home and what is the home environment in each home?
  • If both parents work outside the home, do they have roughly equivalent work hours?
  • If both parents work outside the home, do they both have some flexibility to take time off work to deal with doctor's appointments, school events, activities, illnesses, and family emergencies?
  • Does one parent's employment require regular overnight or extended travel?
  • Is it a low conflict or high conflict case?
  • Does a parent suffer from a substance abuse or mental health issue which currently impacts the parent's ability to provide care, or does a parent have a history of impaired care?
  • Is there any history of domestic violence between the parents?
  • Have there been any issues with a parent's care which rise to the level of child abuse or neglect?
  • Can the parents effectively communicate or are their tools that can be implemented successfully to assist the parents with communication?
  • What is the geographical location of each parent and can transitions from one parent's house to the other parent's house occur with minimal disruption for the child and the child's schedule?
  • Are the children in school or are the children below school age?
  • Do any of the children have special needs?
  • Did one parent consistently do the majority of the caretaking during the marriage or did both parents contribute to caretaking responsibilities?

Although there has been a growing trend towards joint custody arrangements in many states, and such arrangements work well in many cases, the assumption that it is the right of every parent in every case to have 50% physical custody of their child is a dangerous one because it takes the primary focus off the needs of the children and diverts it to the needs of the parents.

Our law firm is sensitive to the emotional upheaval of divorce. We understand that children will be affected not only by the custody arrangement, but the process of their parents going through divorce. When possible, we strive to provide stability to all affected parties through a variety of legal strategies.

There are many creative arrangements that might accomplish this goal of providing a stable home environment to a child. Parents might agree to alternate time in the family home (commonly called "nesting"), rather than transporting their children between each parent's post-divorce living arrangements for a certain period of time after separation. If that is not possible, parents may agree to remain in the same school district, providing a sense of continuity through their children's continued network of friends and teachers.

Finally, divorcing parents should remember that custody arrangements can be modified to reflect changes in either the child's or a parent's circumstances. Examples may include a parent with a new work schedule, a child who needs to transfer to a different school district, or a relocation of one of the parents.

Source: Psychology Today, "What Exactly Is 'The Best Interest of the Child?', Part 2," Edward Kruk, PhD, Feb. 22, 2015

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