In the last chapter, we gave you a basic introduction to the vocabulary of child custody determinations. Now, let’s take a closer look at the most important term: the best interests of the child.
This chapter will discuss several aspects of the child’s best interests, including these:
- What factors go into deciding what’s in your child’s best interests?
- Who really gets to decide what’s in a child’s best interests?
- Does your child have any voice in deciding what he or she wants?
We’ll wrap up the chapter with the answers to a few frequently asked questions.
The Legal Standard for Determining the Best Interests of the Child
As we touched on in chapter 1, the central focus of any child custody determination—including primary custody, visitation, support, and every other decision that touches on your child’s life post-separation—should be guided by what is in the best interests of that individual child.
Let’s pause right there with an observation: you may have noticed that we’re talking about the child in the singular. While we generally use the terms “child” and “children” interchangeably in this book, that isn’t the case when it comes to the best interests of the child, because no two children are the same. Even identical twins are different people with their own unique needs, preferences, and interests. The best interests of the child is always an individual, child-specific decision. What is best for one of your children may not be what is best for another child. No one appreciates that child’s particular quirks and differences better than you do, as the parent. Keep that in mind and remember not to lump your children together when thinking about what’s in their best interests!
Now, what affects the determination of a child’s best interests? A little bit of everything. The courts consider everything about the child’s life, from the practical and the financial to the harder-to-capture emotional and social needs of the child. One of the court’s main goals is generally to minimize the disruption to the child’s life. The court will consider some or all of the following factors, presented here in no particular order:
- the child’s age and developmental needs;
- the child’s current living arrangement;
- the child’s educational needs and current educational environment;
- any special physical or mental needs of the child and each parent’s ability to understand and meet those unique needs;
- each parent’s relationship with the child;
- each parent’s willingness and ability to foster the child’s relationship with the other parent;
- the child’s relationships with and access to extended family;
- the ability of each parent to spend time with and care for the child;
- the mental and physical health and well-being of each parent;
- the stability of each parent, both financially and practically, and each parent’s ability to create a stable home for the child;
- the home environment of each parent;
- the child’s overall safety and physical well-being;
- any history of crime, including abductions of the child or incarceration;
- any allegations or history of drug or alcohol use or abuse;
- any allegations of child abuse or neglect;
- any allegations or history of domestic violence;
- nonmarital sexual relationships and their effect on the child;
- the child’s and each parent’s social and religious ties to the community; and
- in some cases, what the child wants.
Yes, that is an exhaustive—and exhausting—list. But the law in North Carolina doesn’t explicitly spell out everything that a court should consider. There may be additional considerations that are unique to this child. And what really matters, it turns out, is what’s important to your individual judge.
Who Decides? Spoiler Alert: The Child’s Best Interests Are Left to the Court’s Discretion
You’ll recall from chapter 1 that we talked about the advantages of reaching an agreement—a decision between you and your co-parent, without the court playing referee—versus an order, where the judge decides what to do with custody. (And remember the third, hybrid option, a consent order, is still an agreement that you and your co-parent reach; it’s just entered by the court so it can be enforced by the court. You and your co-parent remain the authors or creators of that agreement.)
Once you start factoring in everything that influences the best interests of the child, you can see even more clearly why reaching an agreement is better than having the court decide. It isn’t always feasible to reach a mutually acceptable agreement, of course, but the court will never know your child as well as you, the child’s parents, do. On the other hand, when one parent is being unreasonable or trying to punish the other parent for problems within their relationship, a neutral third party like a judge may do a better job of weighing the child’s best interests!
When you cannot reach an agreement and the court is called on to make a custody determination, though, the court gets to make that determination. You can and should make your arguments and present your evidence—and our later chapters will help you with the nitty-gritty of how to do that—but the decision will be the court’s.
This is what’s called the court’s discretion: the court has, as the dictionary defines it, “the freedom to decide what should be done in a particular situation.” The law allows the court to decide who will “best promote the interest and welfare of the child.” If you think that standard sounds flexible, you’re right.
In the last chapter, we mentioned a few times that the definitions that matter are the ones you and your co-parent, or your judge, come up with. Most of the definitions of these terms aren’t written in stone anywhere. That goes double for what’s in the best interests of the child according to the court. The judge gets to weigh the facts against the (already vague) legal criteria and use his or her discretion to make a ruling about the child’s best interests as he or she sees them.
Sometimes, though, your child can actually help the court reach its decision.
Wait, Can’t My Child Just Decide What He or She Wants?
Maybe.
Courts generally do consider what the child wants when they’re deciding what’s in that child’s best interests. The child’s wishes are “entitled to considerable weight,” but they aren’t the final word. Why not? Because, of course, children don’t always want what’s actually best for them in the long run.
Remember being four? If one parent had let you eat Lucky Charms all day, watch TV nonstop, and never brush your teeth, that would’ve seemed pretty great, right?
Remember being 14? If one parent hadn’t noticed when you snuck out in the middle of the night, had turned a blind eye when you stole beer from the fridge, and hadn’t cared about your grades or even your attendance in school, you’d have thought you were living the high life, right?
So, courts do want to hear from children about what they want, particularly when those children are old enough to have a rational, mature outlook on what’s good for them in terms of parenting or living situations. Just don’t expect that the court will take what your child says as the gospel truth and blindly follow along with whatever he or she wants!
Those are the basics of determining what’s in the best interests of the child, but we hear a few questions pretty consistently about ordinary life decisions that end up influencing best-interests determinations. Let’s walk through a few of those questions.
Frequently Asked Questions (and Answers)
Can I date someone else?
Can you? Sure. Should you? That’s a more nuanced question that we can’t give you a single clear answer to. It may not be logical at all, but your ex’s discovery of your new relationship could cause your custody negotiations to ride straight off the rails. For instances, your ex could try to use the new person in your life as a weapon against you, arguing to the court that you’re not keeping your child safe or that you’re allowing a stranger to be alone with your child. While courts in North Carolina have historically seen through this kind of attack and rejected it, you may be opening the door for a whole daytime-TV world of drama. Alternatively, your ex might take the subtler approach of trying to show that your dating activity led you to be inattentive to or even neglectful of your child’s needs—and that’s a lot easier to argue. So yes, you can date, but you might wake up to find that your position in the custody dispute is much weaker than it had been.
Can I move away? Can my child’s other parent move away?
We’ve got a whole book on relocating after a separation. We’ll also dig into this topic in chapter 6, so hold that thought, please.
Looking at these factors, I can just tell that the court is going to think I’m a lousy parent. What can I do to improve my chances of getting custody?
It’s never too late to become a better parent. You might be able to recognize some of the ways that you’ve fallen short to date or some of the behaviors that you need to add in to improve your overall “mom of the year” score. Whatever they are, start making those positive changes immediately. It’s an uphill battle, to be sure, but recent dedicated involvement with your child can, over time, counteract a spotty or imperfect history.
If I can’t financially support my child on my own but both parents share custody, can I still get child support?
Yes. In North Carolina, both parents are responsible for supporting their children, so there’s always going to be a child support payment—unless you’re in the rare situation where both parents make exactly the same income and spend exactly the same amount of time with the child.
Can I refuse to allow visitation if the other parent doesn’t pay the required child support?
No. Legally, visitation and child support are completely separate matters, so you can’t withhold visits as a penalty to force child support payments. Besides, this kind of retaliation can be very difficult for your child to witness—and believe us, your kids will know what’s going on. Punishing the other parent or impeding your child’s relationship with the other parent is never in your child’s best interests.
Okay, that’s the basic information about when and how courts decide what’s in the best interests of the child. In chapter 4, we’re going to walk you through how to prepare for court so you can show the judge, as clearly as possible, what you think is in your child’s best interests.
But before we do that: remember how we said that reaching an agreement about your child’s custody and visitation is usually better than leaving it up to the court’s discretion? That’s still true—and in chapter 3, we’re going to look at ways that you can avoid putting that life-changing decision in the court’s hands.
