Child Custody and Visitation: How to Show “Best Interests of the Child”

The best interests of the child are determined by factors that provide stability and the best environment for the child. Courts will consider the following factors to make a child custody or visitation decision for a child's best interest: 1) the relationship the child has with each parent, 2) the wishes of the child, 3) any history of abuse and neglect, 4) each parent's mental and physical health, 5) the living environment, 6) the willingness of the parents to cooperate with child custody agreements, and 7) the ability of each parent to provide financial support. For more legal help, use the tool below.

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

UPDATED: Jul 15, 2021

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When a child’s parents separate, custody must be determined for that child. If parents are unable to come to an acceptable agreement themselves, then the court will make the child custody decision for them. All courts in all jurisdictions, in determining how or if child custody will be shared, look primarily at what will be in the best interests of the child. 

How Are Best Interests of the Child Defined?

Though the definition of the best interest of the child varies slightly from state from state, there are many common factors that are considered to provide the greatest stability and the best environment for the child. These factors usually include:

  • The relationship the child has with each parent, as well as with siblings and extended family members
  • The wishes of the child, if the child is old enough to make his or her desires known. The older a child is, the more weight this factor will generally have on a child custody decision. Twelve is sometimes considered to be an age where children are able to speak for themselves and make an informed choice, but this age requirement will vary.
  • Any history of abuse or neglect on the part of either parent
  • Each parent’s mental and physical health
  • The living environment the parent can provide to the child, including the school and local community. Lifestyle issues that might interfere with the ability to provide a solid and stable home life for the child are taken into account, including the impact of cohabitation with a new partner. Things such as religion and work patterns may also be taken into account here.
  • The willingness (or lack thereof) of the parents to cooperate with child custody agreements and to encourage a continued relationship with the other parent for the child. If a parent is making attempts to bias the child against the other parent (referred to as parental alienation), this will reflect poorly on that parent and it can impact a child custody decision.
  • The ability of each parent to provide financial support for the child, including any history of missed support payments.

These and other factors will be considered in order to determine best interests of the child and where the child should live, or how child custody should be split up among the parents.

How to Show it is in the Best Interests of Your Child to Live With You

If you want to get custody of your child, you will have to convince the court that it is in your child’s best interests to live with you. This is especially true if you wish to obtain sole custody. This process will include some or all of the following steps:

  • You will often need to present witnesses that can testify to the judge regarding the above listed factors that are considered when determining custody. Contacting other family members, neighbors, teachers and anyone else who can testify on your behalf is important to making your case.
  • A guardian ad litem is also appointed in many custody cases to make a recommendation to the court. The guardian ad litem represents the child in the custody dispute, and may observe you and your family members and child to determine what the proper choice for custody is. It is imperative you cooperate with the guardian ad litem and provide him or her with the details s/he needs to make an informed choice on what is best for your child.
  • Alternatively, some courts order evaluation by a therapist or social worker and/or mediation, where the evaluator prepares a written recommendation to the court. The court will very often follow the recommendation of the evaluator.
  • You also must refrain from any behavior that could adversely impact your right to custody. Do not badmouth the other parent, and do not interfere with the child’s relationship with that parent, as these things will reflect badly on you during a custody dispute.
  • Be conscious that any evaluator, and the judge, are listening to what you say in order to make a determination as to the best interests of your child. If you express a primary concern in having your child more in order to pay less child support, the judge will interpret this as a lack of concern for your child’s interests and you will most likely end up with less time with your child.

Getting help

Fighting for custody of your child can be a long and difficult process. If you are in this situation, you should contact an experienced divorce lawyer.  Your lawyer will help you understand the specific rules of your state and ensure that you have the evidence needed to prove “best interests of the child.”

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