The “Best Interests” Test/M. Marcy Jones,Esq.

Posted on February 19, 2012


We hear the phrase all the time – “in the best interests of the children” – but what does it really mean? And who gets to decide that? When a couple is divorcing and they cannot agree on the issues of custody or visitation, a judge will have to decide, and he or she will use a standard called “the best interests of the children” in making that determination.

In a perfect world, parents know what’s best for their children, and the parents, together, will take the appropriate actions and make the best decisions for them. But when parents are going through a divorce, we know they are not at their best. They are not at the top of their game, so to speak. In fact, they may well be at the worst of their game because of the total emotional upheaval going on in their lives and with their family. And when people are in this place, they don’t always behave as they normally would, or make decisions as they normally would.

Enter the legal system and your local judge. When parents cannot decide together about a parenting schedule, then a judge will decide. And remember, judges are people too. They have good days and bad days. They certainly try to be impartial and make unemotional decisions, but that doesn’t always happen.

I tell my clients that going to court and letting a judge decide where your children live should be the absolute last resort. It’s always better if the parents can make this decision together. Why would you want a judge, who doesn’t know anything about you, your spouse, or your children, decide where your children will wake up on Christmas morning?

The whole family wins when parents can figure this out themselves, or with a mediator, or with their collaborative lawyers. But what if they can’t? There are situations when it is just not possible to reach an agreement on this. When that happens, and a judge is involved, he or she will make their decision based on a number of factors, including the following:
The age of your children.
The physical and mental condition of your children and their developmental needs.
The relationship between each parent and each child and each parent’s ability to meet the specific needs of each child.
The role each parent has played in the child’s life, from birth to the present, and will likely play in the future.
The tendency of each parent to support the child’s relationship with the other parent.
The reasonable preference of the child, depending on the age, intelligence, and understanding of the child.

The judge will consider the involvement of each parent, and consider all of these factors, and make a decision based on the evidence heard in court.

What’s really in “the best interests of the children?” The answer is easy – for Mom and Dad to sit down together and come up with their own plan for custody and visitation.

Marcy Jones is an author, speaker, lawyer, coach, and advocate for change. She founded Graceful Divorce Solutions to provide essential and comprehensive information to separated and divorcing individuals