What’s in the Best Interest of a Child?

written by Fred Campos
What's the Best Interest of the Child? by Fred Campos https://www.DaddyGotCustody.com

If you face a custody battle, you will hear that phrase a lot. And you should. As a matter of fact, you should ask yourself that question with regards to every decision regarding a divorce, and even before.

45 states All states now determine primary custody on a derivative based on a concept called “best interest of the child.” That said, the U.S. Department of Health and Human Services loosely defines it as: “State laws that present the factors that courts need to consider when making decisions about a child’s appropriate custody and care. Factors to be considered include parental capacity to provide adequate care, sibling and other family relationships, and the child’s wishes.”

Is a divorce in the best interest of a child?

If you decide yes, then you find yourself in the almost impossible position of having to detach yourself from your greatest treasure. You will place yourself in the unenviable and unnatural position of making the determination that Johnny might be better off living with the other parent. Furthermore, the “other parent” or Ex, will probably become someone you don’t get along with perhaps already or in the future. Both parents have to step back and look at the big picture, each putting aside personal differences and whatever negative feelings they have for each other and make decisions that will directly affect their child. It’s not about the parents… It’s what’s best for the children. Most times, that’s difficult. The parents obviously have problems with each other, and neither one wants to “give up” any rights to little Suzie and Johnny. Losing time or access could be perceived as not wanting your children, loving them less, or that you see yourself as an inferior parent. Who wants to be perceived like that? Who wants to admit that the other parent has bonded better with your children? They are 50% yours, why should you voluntarily settle for less? An objective view requires you to ask really hard and self-reflecting questions: Which parent will provide the more stable living environment? Which parent can provide an environment least disruptive to the child’s current situation? Which parent has the emotional stability and family/friend network? Which parent is going to facilitate a positive relationship with the Ex long after the divorce is final? All these questions, and many more must be addressed, and each situation is different. Children’s ages, other familial considerations, geography and a host of other factors must be taken into account. And if you worry about whether or not you did the “right” thing, you won’t know the answer for many many years to come. Even if you make some mistakes, but have acted in your children’s best interest, they will eventually figure it out, and everyone will benefit. The hardest part is keeping your personal feelings about the divorce out of the decisions and focusing on what is truly in the child’s best interest.

Do you feel the “best interest of the child” is still a good standard? How does your understanding of this concept affect your perspective of your case?

Image courtesy of David Castillo Dominici / FreeDigitalPhotos.net.



  1. Phil Young

    What 5 states don’t use the “best interest of the child” as their basis for awarding custody?

    • Fred Campos / FullCustodyDad


      technically all states use some criteria similar to “best interest of the child,” even if they don’t use those words (like Alabama–uses an “any and all factors” standard). I probably should update that post to say “all states” for clarification. However, some states have only recently moved away from the “tender age doctrine,” like South Carolina in May 1994.

      One can argue, many states have derivatives of “best interest of the child” standards. According to November 2012, Child Welfare Information Gateway which painfully list the common and NOT so common ways each state determines “best interest of the child,” I will list the five I was referring too.

      By MY definition, a custody situation could be determined technically outside of a “judge’s decision” and may or may not fall into the category of “best interest of a child.” For example, states that mandate other alternative ideas FIRST, like Arizona, Connecticut, and Georgia require a “Parenting Plan” be drawn up by parents and it is mandatory for the court. Arkansas mandates notifying and considering “grandparent rights” in all custody deputes and Kentucky has a “de facto” custodial clause based on who was the primary recent care taker for the children during the last six months.

      I am not by any means saying these are necessarily bad or good. In fact mandatory parenting plans or inclusion of grandparent rights could be rather good ideas. What I am saying, is in these five state, “best interest of the child” doctrine is no longer the core deciding factor.

      For more specific information consider… DivorceNet’s breakdown by state. Or as I always recommend, ask your local attorney in your state.



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