“Best Interests” Custody

The protection of children and preservation of their best interests is the most important mission of the family court. Likewise, it ought to be the primary goal of the family lawyer. The great difficulty is in defining labels that are acceptable to the parents and meaningful to how they parent into the future. Generally, custody battles are often a rare last resort to what is often just a few small details that need to be sorted out.

Children Thrive with Both Parents

Most children when asked by a judge during a custody interview proceeding will express their love for both parents. They would prefer to be in the custody of both, which is unfortunately not possible anymore. But the idea is that they want to be with both parents and both divorcing sides must be able to recognize this.

Key Concepts That Come with a Custody Negotiation

Except in cases of abuse, the concept of “joint legal custody” ought to apply to all separated families. The guiding standard is always Best interests of the children.

Legal custody means that mom and dad share joint responsibility for the major decisions of the children’s lives. Major decisions include:

deciding on religion
school selection
major medical decisions such as surgery
long-term care planning
substantial travel
the extent to which the children participate in time and money-consuming extracurricular activities.

These types of things are the issues that would be handled whether the family was together or not. This should not be conflated with more day-to-day life concepts that will be discussed next.

Physical custody (or residential custody) means that one of you will not wake up to your child, put your child on the bus, or bump into your young child doing chores around the house. It means that you will trade in the irreplaceable pleasure of watching your child grow up day-by-day. You will have to follow a schedule and timing will be limited by visitation agreements. But you have to think about who has spent more time doing those things with the kids, they should have physical custody.

Custody Fights

You cannot raise your children by the numbers. Dividing up the precise time when the children are not in school and not sleeping is the task of the custody evaluator. It is also the role of the family court where custody is disputed.

Family Courts can typically see through the source of dispute between parties having a trial over custody. The conflict is between the parties who cannot agree whether it is day or night. Each loathes the other. They cannot imagine the other making a sincere gesture or exercising sound judgment as it relates to the children. People win custody trials based upon expert witness testimony and their own trial performances. The family court does not require the person seeking custody is ideal in every way. What matters is in the few short years that you have to raise your children that you will focus on their best interests.

Child Preference on “Best Interests”

If you really listen to the child’s wishes, at an appropriate age, a lot of the drama be avoided. What does the child believe is in their “best interests”. Courts have the authority to interview children. Generally, judges do not feel comfortable or confident in exercising this typically discretionary function. Judges know that, as it relates to guessing which parent will do the best job, they are merely “strangers in black robes”. Instead, the family court will rely upon expert witnesses, typically psychologists who, either court-ordered or hired by the divorcers, will render the opinion about the best interests of the children. The psychologist’s role is to determine if either parent puts the children at risk, assess the ability of the parents to communicate, and determine which parent will serve the best interests of the children.

Palimony Law tested in the NJ Supreme Court. Listen to Jeff discuss the case on The Bold Sidebar.

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Thanks to Horn Law Group, LLC intern Noah Hilsdorf.