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“Best Interests of the Child”: What does this really mean?

In making a custody determination, the polar star that guides the court’s decision is 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 are, and how the courts make such a determination.

It is important to note that the best interests of the child can frequently change. It is a fluid concept that considers the physical, emotional, intellectual, moral, and social wellbeing of the child. Additionally, the court must consider both the short term, daily, wellbeing of the child and also long term needs. 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 relocate. As you might imagine, determining the best interests of the child can be quite a difficult task.

Factors the Court Considers

The court will consider a myriad of factors; there is no comprehensive list of factors that guide the court in determining the best interests of the child. Several cases provide a list of applicable factors, but the judges are free to consider any factor they deem relevant. And in fact, each judge will have her own background and attitude that can also influence the decision. There are three factors, however, that are universally applied by the courts.

First is the concept of preserving the status quo. This idea holds major relevance when the court is asked to make an interim custody order, however is less compelling for non-interim 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 make a decision that will keep the child in the most similar situation to what they are currently 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 was the primary caregiver during the 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 primary caregiver. The primary caregiver is also the person who handled the more mundane aspects of parenthood, such as haircuts, hygiene and birthday party arrangements. 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 can truly be classified as a primary caregiver.

The third factor that the courts give great weight to is the fact that the law favours keeping siblings together. The court can typically not be compelled to split up siblings. Additionally, there is a preference to maintain relationships between stepsiblings. The court will consider maintaining a relationship with a sibling to be in the best interest of the child.

In addition to these three factors the court will consider the weight and credibility of all evidence presented in formulating a decision of what arrangement will be in the best interests of the child. Evidence can speak to everything from the child’s views, to the religious and cultural upbringing of the child, and 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 decide a living arrangement that will truly be in the child’s best interests.

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. Custody can be revisited and the court can chose to modify or vary an existing order if it believes doing so is in the best interest of the child.

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