The Best Interests of the Children in a Divorce

The phrase the best interest of the child is the discretionary and foremost legal standard that pertains to support, visitation and custody. In marriage and family law and in divorce actions, all custody decisions must meet the best interest standard.

Judges who assume the role of all-knowing parent in deciding the welfare of children reiterate this phrase over and over in court orders to the parents about the goals and positions they take when making any decision regarding the children.

Courts take the welfare of children very seriously. In some jurisdictions, courts consider what is called a Children’s Bill of Rights, which recognize a minor’s rights in a divorce. When at all possible, judges want children to enjoy a continuing relationship with both parents.

The obligation of a parent does not end in a divorce. Failure to realize this is a very common social problem: as a dissolution of marriage takes place, so does the parenting.

To this end, the courts may appoint a guardian for the children during a custody dispute case. This insures the children are represented in a fashion that is in their best interests. Many parents are shocked when they realize just how much control the court has over their children once a custody case proceeds to trial. This loss of control can be very emotional and can overwhelm the best of many parents who for the first time realize just how unpredictable a custody ruling can potentially be.

As a general rule, when a family is broken by divorce, most experts believe that the best interests of a child are served by continuing contact with both parents. For this reason the concept of joint custody developed in the 1970s and 1980s as an alternative to the traditional single parent custodial arrangement.

Joint custody, which is also known as shared custody, has two elements: joint legal custody, which refers to equal rights and responsibilities to make major decisions for the children, and joint physical custody, which refers to the parents’ participation in the "day-to-day upbringing of the child."

More than 30 states now have statutes specifically authorizing joint custody awards, and most states now hold that the courts authority to award joint custody does not depend upon whether the parties request it.

In awarding joint custody, the single most important consideration is the ability of the parents to cooperate. In fact, in cases where both parties can cooperate for the benefit of the child, joint legal custody awards are generally upheld even when one or both parents may have sought sole custody.

Joint legal custody does not preclude sole physical custody to one parent. At the least, the parent who has physical custody must have a suitable place to live, provide adequate supervision when absent, maintain reasonable discipline, and nurture the child with affection.

In shared custody routines, courts sometimes designate one parent what is called the "primary physical custody," but allow the other parent "greater access to the child than [he or she would have] with only traditional visitation rights." At issue, is the parent "better suited to attend to the day-to-day care of the child."

Some jurisdictions permit alternating custody in a variety of routines -- weekly, by half year, with the one parent during the school year and the other during summer recess, and even annually. Some jurisdictions frown on this because it is held to be very disruptive to the child.

When it works, shared custody greatly reduces the trauma a child suffers when his or her parents part.

Not infrequently, shared custody routines break down when subsequent to their onset divorce parents demonstrate an inability to cooperate, extreme anger or hostility, serious misconduct, make false allegations about one another, or neglect the child.

All custody is subject to modification based on a showing that the change is in the best interest of the child.

Sometimes shared custodians request the court to modify the physical custody arrangements while leaving shared legal custody in place. This may happen as a result of interference by the primary physical custodian, or his or her instability, or his or her remarriage.



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