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What Goes Into a Best Interests of the Child Determination?

October 14, 2020  | 

{4 minutes to read} When I’m working with parents and we are discussing what each proposes for a parenting plan, I ask them to phrase their proposal in terms of what is in the child’s best interests, and not necessarily what’s best for them.

What does “best interests of the child” actually mean though? If we use the standard of what a judge would consider when making a custody determination in an adversarial proceeding, these are some of the factors that would be used:

  • The concept of primary caretaker — has one of you been more responsible for the typical care of the child?
  • What are your respective parenting skills? Consider each of your strengths and weaknesses as a parent.
  • If your child has special needs, can one of you better address those needs?
  • Your physical/mental health — will these considerations impact your parenting ability?
  • The existence of domestic violence — whether it is emotional, mental, physical, or sexual abuse.
  • Work schedules — what are your respective availabilities and will they change in the future?
  • The wishes of the child — relevance can vary depending on the age of the child.
  • Each parent’s ability to foster a relationship with the other — absent domestic violence considerations — which of you is more likely to encourage a consistent and healthy relationship between the children and the other parent?

In mediation, while these factors are discussed, there are additional aspects that have been raised by parents. They include: 

  • Does the present age of a child warrant spending more time with one parent?
  • Will the parties’ financial circumstances support two homes for the child in the standard of living the child previously enjoyed?
  • Do they believe that they can amend the access schedule going forward as a child’s needs and wishes may change?
  • Is there a need for stability for the child that makes an alternating schedule problematic?
  • Are there other, specific benefits that only one parent may provide?

In a mediated discussion, it can be very difficult to place your child’s needs above your own desires — especially if your feelings toward the other parent are negative. I am consistently heartened, though, at just how many parents are able to do just that, even when in deep conflict with the other parent:

  • The non-residential parent will rent a small apartment so the residential parent can afford to stay in the larger marital home with the child in the same school district.
  • After discussion, a parent will give up the idea of an equal parenting plan when they realize that even though they want to share equal time with their child, such a plan may not be best for the child.
  • A parent recognizes that having a child with a childcare provider because of their demanding work schedule doesn’t make sense if the other parent can be with the child because of a flexible work schedule.

These are painful choices but can be made in a respectful process in which both parents can reach an understanding about the child’s needs in coordination with parental sacrifices. This in turn can result in an acceptance that would be more difficult to achieve in an adversarial process, where the outcome is dictated to you — not by you

Clare Piro Attorney and Mediator

Attorney & Mediator
500 Mamaroneck Avenue | Suite 320
Harrison, NY 10528
Tel: 914.946.0848

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