What Is In The Best Interest of the Child?
Every person who has been involved in a child custody hearing has probably heard the phrase “ best interest of the child“. Even though each state’s law is different, this generally means that the courts will make decisions that it feels will benefit the child or children in every possible way. I don’t know how one would go about determining or measuring a child’s best interest in every situation because no custody situation is ever the exact same. What I think is in my child’s best interest may not necessarily be what a judge thinks is in my child’s best interest and vice versa.
I do feel that as a father the judicial system which uses the “best interest of the child” doctrine sees me a little bit differently than it does a mother. I personally think that many fathers get an unfair shake in the courts due to preconceived notions that mothers are naturally designed to be primary caregivers. This dates back to the Tender Years Doctrine which was a concept adopted by many states in the 1900s to favor mothers over fathers in divorce hearings. The idea of ruling based on the child’s best interest was introduced in the 1970s, but family courts still relied on favoring the mother in most custody cases.
Although more households are being led by single fathers now than ever before, the idea that a woman instinctively knows any and everything to do the moment a child is born is still a predominant notion in our society. Just look at your TV for example. How many times have we seen a dad on television fumbling and bumbling around the house, or in a store with a newborn baby until a motherly figure comes along and saves the day. Those types of images just reinforce the stereotypes that say “mom is the nurturer” and “dad is the provider”. Images like this will continue to become ingrained into the subconscious of our society if we don’t make conscious efforts to say that being a good parent isn’t gender specific, good parenting takes time and effort just like anything else in life. If fathers are to be a part of their children’s lives we should be treated in the same fashion as mothers.
The best interest standard is seemingly a good way to work out custody issues when one parent may have had their parental rights terminated, abused the child, or even been convicted of a crime that would prove to be harmful to the child. What happens when both parents are fit and capable of providing a positive life for the child, but they just can’t reach an agreement on custody? How does the court system determine what the best interest of the child really is? If the playing field is equal the judge can’t just flip a coin and decide who gets the kids…can he?
In the Unites States the factors that determine “best interest” can vary from state to state. Although there isn’t a “best interest” law in the US, the standard in our country closely mirrors England’s Children Act 1989 which states that the courts have to consider seven factors when determining “best interest of the child”:
- The ascertainable wishes and feelings of each child concerned (considered in light of their age and understanding)
- Physical, emotional and/or educational needs now and in the future
- The likely effect on any change in the circumstances now and in the future
- Age, sex, background and any other characteristics the court considers relevant
- Any harm suffered or at risk of suffering now and in the future
- How capable each parent, and other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs
- The range of powers available to the court under the Children Act 1989 in the proceedings in question
In my opinion this check list only means that there is a clear and concise precedent to follow when custody and visitation issues are heard. Each case is different, but they are seemingly bound by these seven factors to make their decisions. So even if a parent is completely capable of caring for their children, if a judge feels that living with the other parent is a better fit for the child, that’s likely the parent who will be granted custody. The courts will considers the needs, wishes and feelings of the child in making their decision, but there is no guarantee that the child will always get what they want. Many times judges are not swayed by children who want to choose one parent over the other. If the judge does take into consideration the wishes of the child it would only be applicable if the child is old enough to express to the courts what he/she wants.
So even after reading this checklist, I still have some real issues with the “best interest of the child” standard, I know that at all times I have to protect my children, provide for them, and prove that I am more than capable of giving them all of the support that they need. When I was a single father I knew that each and every day it was my responsibility to go above and beyond what any judge would ever decide that I should do for my daughter. I was determined to not let a courtroom decision be the determining factor of what I would and wouldn’t do for my child, and you shouldn’t either.
One of the most important thing that you can do as a father is to educate yourself on your rights. So if you are ever in a situation where you have to stand in front of a judge and justify why you are requesting custody or visitation, it is important that you know that you will have to show and prove what you can do to be sure that each item on that checklist is met. Your actions inside and outside of the court should prove that the child’s best interest is your top priority. Take it from some one who knows…NOTHING else matters.
If I don’t know anything else, I know that the one thing that is in the absolute best interest of my children is to have both of their parents actively involved in their lives on a daily basis. And I will provide that for them from now until eternity. Not just for their best interests, but for the best interest of our family, my community, and my legacy.