Child Custody – The Best Interest of the Child Standard

September 8, 2010 by Maricopa County Court  
Filed under Child Custody, Family Court

By Ernie Trimnal -

In child custody cases, the court in most jurisdictions will look at what is in the best interest of the child or children involved. In making its determination, the court considers a wide array of factors. First, we must distinguish between physical custody (where the child physically resides) and legal custody (who makes important decisions concerning the child). Factors are applied differently to each type of custody.

Who has been the primary caregiver? Further questions include who takes care of the child, feeds the child, shops for clothes, gets them up for school, bathes them, arranges daycare, and who the child turns to for help.

The fitness of each parent. Psychological and physical capacities of the parents.

Any agreements between the parties. The court will give a lot of weight to a custody agreement, but will want to make sure that any agreement is in the child’s best interest.

Ability to maintain family relationships. Who will not only allow family relationships, but will also promote them? This is extremely important.

Preference of the child. It is important to note that, while the preference of a child is important, it is not the determining factor. Additionally, the child must be of an age and maturity level to properly express an opinion. Many courts have a procedure whereby a separate attorney will be appointed to represent the interests of the child.

The financial resources of each parent. The idea here is that a party who is better situated financially will have the resources to provide more opportunities for the child. Of course, this is frequently not the case, so this is merely one of many factors.

Age, health and gender of child.

Distance between residences. If the parties live far apart, it will greatly affect a custody determination. Likewise, if the parents live next door to each other, it will also affect a custody determination.

Length of separation. How long has each parent been separated from the child?

Prior abandonment. This factor contemplates a situation where a parent has previously abandoned the child.

Additionally, in making a determination of legal custody and, more specifically, whether to award joint legal custody (i.e. the parents must make important decisions together), the court will often consider additional factors.

Ability of the parents to effectively communicate. This is clearly the most important factor in the determination of legal custody, and is relevant as well to physical custody as well. The cornerstone of joint legal custody is communication.

Willingness to share custody. The parents should be willing to have a joint custody arrangement.

Relationship Established Between the Child and Each Parent. When both parents are seen by the child as a source of security and love, there is a favorable climate for joint custody. On the other hand, joint custody may be inappropriate when opposed by the child, or when there are indications that the psychological or emotional needs of the child would suffer under a joint custody arrangement.

The above is not meant to be an all-inclusive list of what the court will consider in making a custody determination. Most courts will consider all relevant factors. But this list is a starting point

While the above generally describes the best interest standard, every child custody case is different, and jurisdictions differ in their approach. If you need a Maryland family attorney or Virginia family attorney, look no further.

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Child Custody Law – What Factors Determine the “Best Interest of the Child?”

February 16, 2010 by Maricopa County Court  
Filed under Family Court

By David Slepkow –

The Supreme Court of Rhode Island has been consistent about delineating the factors that The Rhode Island Family Court must analyze in determining Rhode Island Child Custody Cases. Child Custody battles in Rhode Island usually occur in the context of Divorce cases, Post Divorce cases or Miscellaneous Petitions between non married parents seeking custody.

The RI Family court must determine what is in the “best interest of the child” This is very subjective and analytical standard. It is advisable to contact a Rhode Island Divorce Lawyer or a RI Family Law Attorney to get legal advice concerning the facts and circumstances in your case. There are 8 basic factors that the judge should look at in determining the best interest of the child. These factors are used by the court in determining both physical and legal custody of children

“This [C]ourt has held that child-custody awards must be made in the ‘best interest[s]‘ of the child.” quoting Petition of Loudin “[T]he best interests of the child standard remains amorphous and its implementation has been left to the sound discretion of the trial justices.” Id. Several factors must be taken into consideration by the Judge in making a best interests of the child determination. However, no single factor is determinative; rather “[t]he trial justice must consider a combination of and an interaction among all the relevant factors that affect the child’s best interests.” Among the factors the court must consider are the following:

1. The wishes of the child’s parent or parents regarding the child’s custody.
2. The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
3. The interaction and interrelationship of the child with the child’s parent or parents, the child’s siblings, and any other person who may Significantly affect the child’s best interest.
4. The child’s adjustment to the child’s home, school, and community.
5. The mental and physical health of all individuals involved.
6. The stability of the child’s home environment.
7. The moral fitness of the child’s parents.
8. The willingness and ability of each parent to facilitate a close and continuous parent-child relationship between the child and the other parent.” Pettinato v. Pettinato, 582 A.2d 909, 913-14 (R.I. 1990).

If a parent is trying to modify an existing Child Custody determination / Family Court Order then that parent must also prove a substantial change in circumstances since the last custody order. The Rhode Island Supreme Court ruled “Moreover, before a final custody decree can be reopened or amended, the moving party must establish by a fair preponderance of the evidence that the conditions or circumstances existing at the time the decree was entered have so changed that it should be modified in the interest of the children’s welfare.” Pettinato v. Pettinato “Until and unless the moving party meets this burden, the prior custody award should remain intact.” Id.

There is often conflicting allegations and factual disagreements concerning the above listed factors. Therefore, the Rhode Island Family Court relies heavily on psychologist, Psychiatrist, social workers, DCYFreport and the opinions of the Guardian ad Litem for the minor child.

In a Rhode Island Child Custody case a Guardian ad Litem for the minor child is usually appointed. A Guardian ad Litem is usually a divorce and family Law lawyer. The Guardian ad litem will do a thorough investigation which usually includes a home study, and an interview of both parents. The guardian will also review pertinent medical records, educational records for the child and other records related to the child. The Guardian’s role is to determine what is in the best interest of the child and report his or her findings to The Court.

A Guardian ad Litem is very expensive. The Guardian is not an attorney for the Children. The Guardians’ recommendations are usually adopted by the court.

Legal Notice per Rules of Professional Responsibility: The Rhode Island Supreme Court licenses all lawyers and attorneys in the general practice of law, but does not license or certify any lawyer / attorney as an expert or specialist in any field of practice.

David Slepkow is a Rhode Island Divorce Lawyer concentrating in Divorce, Family Law, Restraining Orders, Child Support, Custody and Visitation. David Slepkow has been practicing for over 12 years and is licensed in Rhode Island (RI), Massachusetts (MA) and Federal Court. Free Initial consultations. Credit Cards Accepted. You can contact RI Attorney David Slepkow by going to Rhode Island Family Law Lawyer or by calling him at 401-437-1100.

Article Source:  Child Custody Law – What Factors Determine the “Best Interest of the Child?”

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