IN CUSTODY DISPUTES, HOW DOES COURT DETERMINE "BEST INTERESTS"
OF THE CHILD?
By Sari M. Friedman, Legal Counsel
Fathers' Rights Association (NYS & Long Island)
It is pretty much common knowledge that the standard for deciding which
parent is to be given
custody of the child (or children) is based on what is in the best interests of
the child. But how can the court determine that? Usually, by taking one
or more factors into consideration.
A Child's Preference
In New York, once the child reaches the age of eighteen, that child is
no longer subject to an order of custody. There are some courts that would
hesitate to influence the choice of a sixteen or seventeen year old unless
the child has some serious problems and his or her choice is not deemed
reasonable by the court.
Preferences of a young child will not receive the same level of weight
based on the theory that a young child cannot properly assess what is
in his or her best interests. Nevertheless, the choice made by a young
child can be very telling. It strongly suggests with which parent the
child has more closely bonded, and it may also show which parent the child
sees as more nurturing. These factors are indeed relevant in determining custody.
Status Quo - What has each parent expressed by past conduct to be their wishes? For
example, if parents have been living separate and apart and they have
developed a pattern of where the kids live and with which parent, the
court might be inclined to continue that arrangement or something close to it.
Siblings - Usually, the court prefers to keep siblings together. Nevertheless,
sometimes the needs of children differ and, in such an instance, the court
could split them between parents.
Stability of Environment - The court prefers to keep children in the same neighborhood, the same
school, close to the same friends. Thus, if one parent wants to move out
of the neighborhood and that would require the children to change schools,
that is a factor for court consideration.
Wealth of the Parent - Is the quality of the house suitable for the children? Is there suitable
space for them? The court would also be concerned with the cleanliness
of the house, the safeness of the neighborhood, the quality of neighborhood
health care, access to religious institution, etc.
Parental Stability - Is the preferred custodial parent stable? Does the parent have a history
of mental illness, drug or alcohol addiction, a criminal history or a
history of promiscuity, homosexuality, or other sexual deviants? Does
the parent have a history of violence toward self or toward child?
In brief, the court is most concerned with the stability and judgment of
the parents, as well as the quality of the relationship between parent
and child. How does the child get along with each parent? Frequently the
age and sex of the child can affect choice. For example, older boys may
tend to be closer to their fathers and may very well prefer to live with
the father regardless of other negative or positive factors. And finally,
who else lives in the house? Are there step siblings, a step parent? What
is the quality of relationship with these people?
Perhaps above all, the court would encourage parents to promote a two parent
relationship. That means no bad mouthing of the other parent. No denials of
visitation. Remember, two people are
divorcing each other. No one is divorcing his or her children.