Monthly Archives: May 2016

Factors that Courts Use to Determine the ‘Best Interests’ of Children

In family law, a central doctrine in cases affecting children is that decisions should be made in the children’s “best interests.” This can include who a child lives with, who has custody, what is the visitation schedule and whether or not a parent’s rights should be terminated.

There is no standard definition of a child’s best interests, but all states, the District of Columbia, American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands have laws requiring courts to examine them when making decisions.

According to the U.S. Department of Health and Human Services (HHS), “‘Best Interests’ determinations are generally made by considering a number of factors related to the circumstances of the child and the circumstances and capacity of the child’s potential caregiver(s), with the child’s ultimate safety and well-being as the paramount concern.”

Divorce and family law statutes vary from state to state. Here are some of the common guidelines and factors used by courts to help determine what is in the best interests of a child, according to HHS’ Child Welfare Information Gateway:

  • The importance of family integrity and preference for avoiding removal of the child from
    his/her home (approximately 24 States, American Samoa, Guam, Puerto Rico, and the U.S. Virgin
  • The emotional ties and relationships between the child and his or her parents, siblings, family and household members, or other caregivers (13 States and the District of Columbia).
  • The capacity of the parents to provide a safe home and adequate food, clothing, and medical care (eight States).
  • The mental and physical health needs of the child (five States and the District of Columbia).
  • The mental and physical health of the parents (six States and the District of Columbia).
  • The presence of domestic violence in the home (eight States).
  • The child’s wishes (Approximately 11 States and the District of Columbia). In these cases, the courts are required to consider the child’s wishes when making a determination. Courts will also consider whether the child is of an age and level of maturity to express a reasonable preference.

Your child’s best interests will be determined under the laws of your state. Consult with one of our attorneys with questions about your situation.

Two ‘Best Interests’ Cases

In one well-publicized, controversial case, a court in Ohio took an 8-year-old boy away from his family and placed him in foster care because he was obese. Caseworkers testified that the mother did not do enough to control the third grader’s weight, which was reported at more than 200 pounds.thmb_day_care_mother_child_stroller_bz

The child was returned to his family in May of 2012 after losing approximately 50 pounds. “The best interest of the child has been protected and supported,” the judge stated. “The system worked.”

In another case that went to the U.S. Supreme Court, a Washington grandmother and grandfather petitioned a court for visitation with two daughters of their deceased son. The mother of the children opposed the petition.

A lower court determined that visits with grandparents were in the best interests of the children. However, the Supreme Court disagreed. Forced visitation, the ruling stated, “violated (the mother’s) due process right to make decisions concerning the care, custody, and control of her daughters.” (Troxel v. Granville, No. 99-138, 6/5/00)

(The HHS Child Welfare Information Gateway maintains a state-by-state database covering child-related laws. Click here to access it.)

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