‘Best interest’ of the child is a vague notion

When a court decides what is in the best interest of the child, they could take into account 18 factors.

If you go to New York state’s courts website, nycourts.gov, you can find the following:

“When there is a court case that affects a child, like custody, parental rights, or adoption, the court will consider the ‘best interest’ of the child when making its decision.”

But what does “best interest” of the child mean? The website continues:

“There is no standard definition of ‘best interest’ of the child. In general, it refers to the factors that the judge considers when deciding what will best serve the child and who is best suited to take care of the child. In New York, the ‘child’s health and safety shall be the paramount concerns’ when making a decision.”

To say that “There is no standard definition of ‘best interest’ of the child” is an understatement. In New York, there are about 18 factors that a judge may take into account, including:

Age of the child; health and special needs of the child; capability of each parent to provide for care; history of the care provided by each parent; health and physical condition of each parent (which includes damage done by drug or alcohol abuse); preference of the child, depending on the child’s age; maintaining stability in the child’s life; and so on.

In addition to these, there are about a dozen other factors; plus, a judge may consider any other factor that may have a bearing on the best interest of the child.

This, of course, is all according to New York state law. Other states have their own laws regarding what is in a child’s best interest, and many of those laws are different from ours.

Across much of the country there are disagreements regarding whether and how to reform child-custody laws. Some issues that are being raised:

• How to balance what parents want and parental rights against the rights of children.

• Should there be a presumption of joint custody? (Meaning, essentially, that the court will rule that both parents will spend roughly the same amount of time with their child, unless one parent presents convincing evidence that only she or he should have custody in this case.)

• If a parent has been away from a child due to military service, is this circumstance to be considered?

• If a child has witnessed domestic violence against a parent, should there be a presumption that the other parent cannot be awarded custody?

• Is evidence of Parental Alienation Syndrome, where one parent has manipulated a child to hate or fear the other, something a judge can look at?

• What role should mediation play? Do findings that mediation is a much quicker and less expensive process than litigation warrant “mandatory mediation,” meaning that parents would be required to engage in what is generally thought of as a voluntary process when it comes to custody cases?

• Should judges and lawyers involved in custody cases be mandated to learn more about how “high conflict” affects children?

A few points on what New York law says about custody cases:

• New York does not presume that parents will share joint custody.

• Joint custody should not be granted to “warring” parents; and if parents are in court over custody, this fact indicates that they are unable to jointly make decisions for their child.

• Domestic violence is a mandatory factor — meaning the court must consider it — in determining custody.

• If one parent is deceased, there is a presumption that the surviving parent will be awarded custody.

You can expect that questions about what is really in the best interest of our children will continue to be asked; and as opinions change, New York’s laws may change with them.

Reference: “Best Interest of the Child: A Legislative Journey Still in Motion” by Erin Bajackson in the Journal of the American Academy of Matrimonial Lawyers, Vol. 25, 2013 p. 311. (www.aaml.org/sites/default/files/MAT205_2.pdf)

New York City and Long Island-based divorce mediator and collaborative divorce lawyer Lee Chabin helps clients end their relationships respectfully and without going to court. Contact him at lee_chabin@lc-mediate.com, (718) 229–6149, or go to lc-mediate.com/. Follow him on Facebook at www.facebook.com/lchabin.

Disclaimer: All material in this column is for informational purposes only and does not constitute legal advice.