Divorce Confidential: Children And The ‘Best Interests’ Standard

Emotions run high in divorce, particularly when children are at stake. When parents are involved in a litigious custody battle, intense emotions of a parent dealing with change and loss may cloud his or her ability to separate emotions and the needs of a child. To deal with this reality, courts have implemented the “best interests” standard when making orders regarding children and their future. The goal of the “best interests” standard is the well-being of a child’s mental health, security, happiness and overall emotional development for future success. Often, a child’s “best interests” is closely intertwined with a close, loving and consistent relationship with both parents.

Ideally, the goal of all parents in divorce should be the best interests of a child. However, this is not always possible and this is when a court will step in to make these important decisions.

1. How Do Courts Determine The “Best Interests” Of A Child? The “Best Interests” standard is fact specific to each and every case. It is a broad standard, which is valuable because the court will look at many factors before making any major decisions regarding a child. Some factors the court may consider include the following: a parent’s physical/mental health, specific needs of a child, emotional stability of each parent, the ability of a parent to provide a room for a child, a parent’s financial situation (although this does not necessarily mean a parent with more money is at an advantage), domestic violence and a child’s current contact with a parent. Sometimes, a court may also consider a child’s preferences if the child is at an appropriate age and maturity. This is not an exhaustive list of factors the court will consider. Many times, the court will consider any and all factors it deems valuable in making an informed decision regarding the child’s best interests.

2. Is The “Best Interests” Standard Universal? The “Best Interests” standard is not necessarily a universal standard across the globe. For example, in Hong Kong, one of the most cosmopolitan cities in Asia, there is no “best interests” standard. While there is no formal standard in place, glimpses of the standard are coming through Hong Kong court decisions. And the good news is that the standard is becoming embodied in a “welfare checklist” in a new children’s ordinance bill set to become law at the end of 2017 or early 2018. Much like the “best interests” standard here in the United States, the “welfare checklist” includes questions the court will consider when making orders such as: the views of a child, the child’s physical, emotional and educational needs, family violence and the capability of a parent for the child’s needs. Keith Hotten, a barrister, mediator and matrimonial law professor in Hong Kong says “[The new legislation] brings Hong Kong into the modern world. The point of the new legislation is to bring focus onto parental responsibility, which is essentially joint custody.”

3. A Parent’s Role In The “Best Interests” Standard: Bill Eddy, a mediator, attorney and author at the High Conflict Institute in San Diego says “[p]arents are constantly thinking about what is in the best interests of their children. But when it comes to separation and divorce, it can easily slip into a contest of which parent is acting more in the “best interests” of their child.” To avoid this type of conflict, Eddy suggests parents talk jointly with a parenting expert or coach. Eddy says this will “[e]nable parents to be more effective at communicating, making reasonable proposals and managing their own emotions for the benefit of joint decisions truly in the best interests of their child.” Eddy also suggests parents ask themselves some key questions before making any major decisions such as: “How will this impact our child’s relationship with the other parent? How will this impact our child’s future romantic relationships? How will our child feel towards me in the long-term, if I reduce contact with the other parent, or allow dangerous contact?”

Overall, parents who work together and make the best decisions for their child are better off than when a court imposes an order on the family. With that goal in mind, look for a parenting expert or coach in your city. There are also many valuable resources available to you including co-parenting classes and co-parenting books. Finally, don’t forget to talk to an attorney in your city for a resource list and tips on how to navigate this process!

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