Family Law and the Best Interests of the Child
Parents that cannot come to an agreement regarding parenting arrangements during child custody litigation abdicate responsibility for this decision to a Family Court Judge. The Judge is required to focus only on the “best interests of the child”, but what does this mean?
In a child custody dispute, the paramount and controlling factor is the welfare and best interests of the child.
In determining the best interest of the child, the family court considers several factors, including: “who has been the primary caretaker; the conduct, attributes, and fitness of the parents; the opinions of third parties (including GAL, expert witnesses, and the children); and the age, health, and sex of the children.” In other words, “the totality of the circumstances peculiar to each case constitutes the only scale upon which the ultimate decision can be weighed.”
Well, that’s not much help and that is the controlling standard that Judges must use to make a child custody decision. So what does this thing “best interests” really mean in practice? In my experience, it means anything that a Family Court judge wants it to mean. Without a definition for “best interests”, judges can literally do whatever they want. I once had a family court judge tell me “when it comes to a child, I can do anything that I want”. While I am sure that she cannot do “anything” that she wants, I am sure that she believes that she can.
A mother recently lost custody of her 9 month old baby girl because her husband, not the child’s father, tested positive for cannabis use. There was no evidence that the child had ever been exposed to cannabis and the Guardian testified that the child was thriving in her care.
A mother, who had been a stay at home mom for the entire marriage, lost custody of two children because she had an extramarital affair. There was no evidence that the children knew about the affair or that they had ever been exposed to her paramour. In fact, the undisputed evidence was that the children were thriving in her care and father worked a full time job and would have to place the children in full time day care.
All family law attorney’s have “war stories” like these. The problem is that without any definition in law as to the meaning of “best interests” in a child custody case, a family court judge will impose his or her own standards of morality and decency upon the families that appear before him.
We are often encouraged to use our “common sense” when evaluating laws. Common sense tells us that a child needs to be loved, well nourished, have adequate housing, be physically and emotionally healthy and cared for, and attend school regularly. While a step dad may use cannabis, if he has no child care responsibilities and the child is thriving in mom’s care, on what basis is custody in play other than a Family Court judge’s personal opposition to cannabis?
Without a definition as to what constitutes the “best interests” of the child, a family court judge in child custody case has virtually unfettered discretion to impose their particular views of morality and decency on a family who may very well have different beliefs. As long as the children are healthy, happy, loved and well cared for, a Family Court judge should not be permitted to impose their personal standards of morality and decency upon the families in our communities.