Decoding the “Best Interest of the Child” Standard
In many states, including Massachusetts, family court judges are tasked with rendering decisions that are in the “best interest” of a child. But exactly what does that mean? To begin this discussion, it’s important to note the differences between the two types of child custody: legal custody and physical custody.
Legal Custody
There are 2 main components of legal custody:
- Decision-making ability and authority relating to important issues related to a child including medical, education, and religious issues; and
- The ability to obtain your child’s records (medical records, report cards, etc.) and speak with their providers and teachers.
Physical Custody
Physical custody pertains to where a child resides and how s/he spends their time between two parents, which is often referred to as the “parenting time schedule.”
Both types of custody can be either joint/shared or one parent can have sole custody. Sometimes, the parent with “sole” physical custody is referred to as having “primary” physical custody. Physical custody affects child support calculations and where a child may be eligible for school enrollment. Parents can also have joint legal custody with one parent being designated as having final decision-making authority in the event that the parties cannot agree on a particular issue.
In determining what is in the best interest of a child in terms of both types of custody, the judge may consider the following factors:
- Physical and mental health needs of a child
- Child’s routine
- Child’s ties to the community and school
- Child’s relationships with extended family members and half-siblings
- Preferences of the child (which typically has more weight the older a child gets)
- Physical and mental health of each parent
- Which parent was historically the primary caretaker of a child
- Each parent’s work schedule and responsibilities outside of the home
- How willing each parent is to facilitate a relationship between a child and the other parent*
This is not an exhaustive list, and the major risk of litigating in family court is that judges have wide discretion in rendering custody decisions. This means that the same case could be decided extremely differently if the same set of facts are presented to 2 different judges. Why does this happen? Because judges are flawed people, just like you and me, and they bring their own unique biases and perspectives to each case that they decide regardless of how neutral they attempt to be. The lack of predictability in custody orders is one the main reasons that alternative dispute resolution and attorney-assisted settlement negotiations are our preferred methods of conflict resolution at Foundations Family Law because YOU have control of all of the terms of your case versus gambling the most important aspects of your life on the whims of a stranger.
It is worth noting that in Massachusetts, there is a rebuttable presumption set by statute that joint custody is not in a child’s best interest in cases of domestic violence. However, there typically has to be a pattern of escalating abuse or an extreme incident of physical violence for this presumption to apply. This leaves a void of cases that may not “qualify” if the abuse is non-physical such as in relationships marred by narcissistic abuse and/or coercive control. *In these situations, a parent who is justifiably protective of a child may have his/her reluctance or unwillingness to facilitate a relationship between a child and the other parent used against him/her in family court. This is one of the many reasons why you should work with an attorney, such as those at our firm, who are knowledgeable and experienced in cases of narcissistic abuse and coercive control.
If you have questions about child custody and how it pertains to your unique circumstances, please schedule a consultation with us today!