Child Custody Cases – What’s in the Child’s Best Interest?

Any attorney who specializes in family law will tell you that child custody cases are determined based on the “best interest of the child.” That sounds great, but what does the phrase actually mean?

In bar review, there was a professor who said that arguing your side means taking whatever issues there are and showing how it would be good for the child. His example was sending a baby into space and how a creative attorney could take even that absurd notion and try to convince a judge that the kid would actually love it (obviously the attorney arguing against it would have an easier time). As entertaining as those court proceedings would be, here are some more realistic issues that often arise.

First, the state’s obligation to protect children is one that is taken seriously, and as a former child protective attorney I understand the necessity of taking abuse or neglect allegations into consideration, while also knowing that not everyone charged actually did something wrong.

Especially in New York City, the number of child protective cases investigated and filed in court has skyrocketed the past few years, and more and more questionable cases are being brought. As a result, a number of parents who didn’t harm their children are being penalized, both in custody cases and in their attempts to get public benefits. While child protective investigation results are generally admissible in custody cases, it is important to have an attorney that can weed out inflammatory and unproven allegations so they don’t derail the case.

Second, and sometimes related to the above, the general living situation is taken into account. Often courts will appoint a forensic evaluator (also known as a forensic investigator) to take a close look at the child’s family and what each parent can provide as a primary resource.

How big is the home? What sort of relationship does the child have with each of the parents? Are there other family members that the child has a relationship with that shouldn’t be disturbed? This last point is especially relevant if the parents live far apart from one another. The report that the evaluator submits will definitely have an impact, though its severity will most likely depend on whether or not there are stark differences between what each parent could offer.

Finally, what does the child want? There are few hard and fast rules about how much weight to give the child’s opinion, but it often depends on the age of the child. While law guardians are often appointed to represent the child (or children), it is generally accepted that the law guardian will ask for what the child wants if the child is at least 12 years old, and will likely use what’s known as “substituted judgment,” what the law guardian believes the child would want or is in the child’s best interest, for someone younger. Although 12 is the traditional cut-off age, that doesn’t mean that a younger child’s wishes won’t be taken into consideration or represented to the judge. While it becomes trickier the younger the child is, if he or she is intelligent, articulate and understands what he or she is asking for (as much as a child can), then it would be inappropriate to disregard those feelings. The best law guardians, and judges for that matter, know when to follow the child, provided other exclusionary factors don’t exist.

These three issues are by no means exhaustive of those that arise during custody cases, but they can often be the most contentious. What’s in the best interest of the child is different in every case and it’s important to remember that all factors must be considered in order to reach the best solution. Frankly, I’d love to argue the benefits of a baby experiencing zero G.

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