One of the biggest questions facing a couple separating is who gets the kids. It is always best if the parents can work out an arrangement together that best suits their family. But when an agreement cannot be reached or the conflict gets too great, the decision is made by the courts.

To determine this question, most family courts across the U.S. use the standard known as the child’s best interests. While there is no perfect formula for determining what is in the child’s best interest, the analysis by judges and family court mediators often includes a variety of factors tailored to the particular child or children in question. Thus, when determining who gets custody and visitation and on what terms, the child’s interests prevail over their parent’s desires.

What are the Factors in Determining the Child’s Best Interest?

Family law, including custody and visitation, can be unique in each state. However, most state courts generally consider the following factors to determine custody decisions:

  • The child’s background including their sex, age, and personal health characteristics. 
  • If the child is at least 12-14 years old, many jurisdictions will consider the child’s preferences as an important factor as long as the child demonstrates a certain level of maturity. 
    • However, a child’s preferences are not a substitute for other factors. Just because a child prefers one parent over the other does not override the court’s consideration for the other factors.
  • Environmental factors such as the quality of education in each parent’s school district, the safety of each’s neighborhood, and proximity to other extracurricular activities. 
    • Courts are more inclined to continue already established patterns for a child absent some important reason to change a school or neighborhood.
  • The physical and mental health of each parent.
  • Each parent’s ability to provide emotional and financial support for the child while the child is in their care. 
    • While poor parents will not be prevented from having custody of their children due to their financial status, the court may decide the permanent residence is with the parent who is able to maintain an appropriate home on a long-term basis.
  • The stability of each parent’s lifestyle and background. 
    • Parents who have jobs that require substantial overnight travel may have difficulty securing residential custody unless changes at work are made.
  • The existence and level of attachment to other siblings or important family members in the home. 
    • Courts often encourage children to maintain their relationships with half siblings and other family members like grandparents.
  • Each parent’s commitment to facilitating an ongoing and healthy relationship between the child and the other parent. 
    • Parents who are cooperative with the other parent when it comes to their child’s needs and handle disputes respectfully are more inclined to receive custody and decision making authority than parents who speak ill of the other to the child and routinely pick fights in front of the children.

Can the Judge Override the Child’s Best Interest Standard?

In some cases, the judge may override what is in the child’s best interest due to an extreme change within the family. For example, why it may be in the child’s best interest to remain with a parent who has always been the primary caregiver, that could change due to a recent disability to that parent making it difficult for them to perform regularly caregiving activities.

Another extreme change can occur when one parent relocates for work across the country making regular visitation challenging. 

How Can I Determine What is My Child’s Best Interest?

Courts prefer parents to mediate or otherwise amicably work out the details of visitation and custody together rather than litigating the issue. As a result of that preference, many states require parents to go to a certain number of mediation sessions before the court will hold a hearing to determine custody.

To avoid long drawn out custody disputes, parents should attempt to resolve the issue themselves which provides both parents with more control over the outcome rather than leaving it up to the court. Follow these tips when working with your ex:

  • Always be respectful regardless of the other parent’s behavior.
  • Make a list or schedule of each child’s routine. Include school, extracurricular activities, religious observances, and any regular appointments for medical or family gatherings.
  • Compare your work schedule and other regularly scheduled commitments with your ex’s schedule and find opportunities for your child to spend time with both parents throughout the week.
  • Consider how you will share holidays, birthdays and other important dates throughout the year. Think about whether alternating holidays each year or splitting the day every year is best for your child.
  • Use family members or friends you and the other parent both trust to provide assistance or help resolve disputes.
  • Understand that both parents will have to cooperate and compromise to ensure a successful result for the child.

Reaching an agreement together often ensures the long-term success of a schedule. However, seek a protective order or other remedy if you are in fear of your ex or in fear for your child’s safety.

Should I Consult a Family Lawyer?

Yes, a local family attorney in your jurisdiction can help you understand what the local court is likely to do when the parents cannot agree.

Hiring an attorney can also provide professional guidance in determining how best to handle your particular custody and visitation dispute. Some family lawyers also do family mediation so that you and the other parent can come to an agreement that best suits your children without the need of a judge.