For parents going through a divorce, the decisions and disputes surrounding child custody can be among the most challenging and emotional parts of the process.
Whether you and your ex will work together to reach an agreement out of court through negotiation or mediation, or the conflict has reached the point where a judge must decide, the same standard applies—the child’s best interests.
It’s a deceptively simple concept. Naturally, even when you’ve decided you can’t go on as a married couple, you love your child and want what’s best for them. The challenge is agreeing on what that is when you disagree on practically everything and have different points of view.
The best interests concept plays a vital role in family law but has no single, fixed, straightforward definition. Instead, it involves a holistic assessment of many factors that contribute to a child’s well-being and the ultimate goal of nurturing and protecting their physical-mental-emotional health and development, security, and happiness.
Although it is somewhat subjective and imperfect—and can be challenging to apply in practice—there are good reasons for the standard. It has a fascinating history that can help understand the child’s best interests and why it’s used today.
The View of Childhood Throughout History
In the middle ages in the western world, “childhood” received little special attention. Children were considered small, unformed adults. It was in the 17th century that they came to be viewed as innocent beings that required special protection. In the 18th and early 19th centuries, a more idealized view of childhood emerged, based on Swiss philosopher Jean-Jacques Rousseau’s idea that children had innate wisdom. He believed they had a unique way of thinking, reasoning, feeling, and expressing themselves, and children should be allowed to develop naturally. The Industrial Revolution had sent many young children to work—spurring this recognition of the need to safeguard them against exploitation.
How the “Best Interests” Standard was Established
Throughout the 20th century, several global conferences and declarations focused on “the child’s best interests” and underscored the responsibility of adults to provide care and protection. In 1959, all Member States of the U.N. General Assembly adopted The Declaration of the Rights of the Child. The 1989 Convention on the Rights of the Child expanded the definition of “child” through 18 years of age, officially recognized their dignity and vulnerability, and created an internationally binding statement codifying children’s fundamental human rights. Although the convention did not precisely define best interests, it established that in any official decision-making process regarding a minor, the focus must be on the child’s protection, well-being, and right to grow up in an environment that supports mental and physical health.
A Brief History of Child Custody
Before the best interests standard, custody depended on varying factors. In colonial America, the father was automatically the custodial parent. During the industrial revolution, as more men left family farms and villages for factories, mothers were regarded as the primary caregivers, and the British Parliament’s 1839 “tender years doctrine,” favored the mother until the child reached age 16, was widely accepted. In the 1960s and 70s, when divorce was rising, and more women joined the workforce, child development specialists began to pay closer attention to the father’s important role in child-rearing. In 1979, California passed the nation’s first joint custody statute, which established a legal assumption that, except in unusual circumstances, the child should maintain frequent contact and meaningful connection with both parents. By 1991, 40 states had adopted similar codes.
Best Interests Today:
While the best interests standard leaves room for interpretation, the guiding principles are consistent:
- The safety, protection, health, and happiness of the child
- Consistency, stability, and permanency
- Preserving the integrity of family relationships
The specific factors, based on these principles, that influence custody decisions in divorce vary by case, court, and state but typically include:
- Parenting ability. The court will assess how well a parent requesting custody can provide for the child’s physical and emotional needs—from food, shelter, clothing, and health care to guidance and support, as well as education and taking care of any special needs.
- Parental fitness. The court also considers the parents’ physical and mental health and whether there is any history of substance abuse, severe neglect, abandonment, crime, violence, sexual abuse, or any factor that could compromise the child’s safety.
- Child’s age. In general, young children need more hands-on care. The court will look at which parent can provide that and who has been the primary caregiver until this point. If the child is old enough, some courts will consider the child’s preference.
- Consistency. Children benefit from a stable home environment and a solid parent-child relationship. They avoid disruptions to the child’s routine as much as possible, including living arrangements, primary caregiver, school, and childcare; they also try to preserve access to extended family. Judges typically try to limit any significant changes to a child’s circumstances that could have a negative impact.
- Other. It’s important to know that California law does not favor either parent and that gender and sexual orientation are not considered deciding factors.
If you’re involved in a custody dispute, the experienced and compassionate family law attorneys at SFLG can support you in understanding and preparing for all the best interests factors that will impact your case, to get the best possible outcome for you and your family.
By Debra Schoenberg