In the best interest of the child
In divorce and custody cases the phrase “in the best interest of the child” is used frequently. But what does it mean? In some cases it can be obvious. In situations where one parent is unable to care for the child and provide a safe and loving home, the best interest of the child is easier to determine. But in circumstances where both parents are loving, well adjusted, and able to provide a safe stable home, the best interest of the child can be more difficult to define.
The courts use a framework of factors to answer, “what is in the best interest of the children?” Here are some of the most common factors, but this list is not exhaustive. The courts will use any factor that it deems relevant to decide what serves the child best interests.
This framework considers:
- the age and gender of the child,
- the educational options and resources available to each parent,
- the stability of each parent’s home,
- and the income and economic resources of each parent.
- The courts will also consider the child’s preferences in regard to custody.
Many people mistakenly believe that children get to choose which parent they want to live with at a certain age (generally age 12 or above) but this is not the case. It is rare that a child’s direct input is taken into consideration by the court. However, the children’s voice can be heard if a custody evaluation is ordered by the court or guardian ad litem (attorney for the child(ren)) is appointed to represent the children’s interest. While children do not get to choose, the more mature and well reasoned their desires are the more likely their voice will have greater input.
Oregon Statute 107.137(1) provides the following guidelines for how Oregon courts should determine the best interest of the child:
In determining the custody of a minor child, the court shall give primary consideration to the best interests and welfare of the child.
In determining the best interests and welfare of the child, the court shall consider the following relevant factors:
- The emotional ties between the child and other family members
- The interest of the parties in and attitude toward the child
- The desirability of continuing an existing relationship
- The abuse of one parent by the other
- The preference of the primary caregiver of the child, if the caregiver is deemed fit by the court
- The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child
The court may not consider such willingness and ability if one parent shows that the other parent has sexually assaulted or engaged in a pattern of behavior of abuse against the parent or a child and that a continuing relationship with the other parent will endanger the health or safety of either parent or the child.
Custody cases can quickly become contentious and emotions frequently run high. It can be difficult, but it is important for parents navigating custody issues to keep a level head. Maintaining composure and keeping emotions under control will help parents make sound decisions, reach a custody agreement that is in the best interest of the child and meet the needs of the parties involved.