You've heard it said many times. Courts base their custody decisions on the best interests of the child. But how, indeed, do they determine best interests? Usually, they make their determination based on taking one or more factors into consideration.

A Child's Preference Age is a Factor

In New York, an eighteen-year-old child is no longer subject to an order of custody. At the same time, there are some courts that would hesitate to influence the choice of a sixteen or seventeen year old unless the teenager has serious problems and his or her choice is not deemed reasonable by the court.

The real issue is the younger child. Preference here will not be given the same weight because the courts believe a young child cannot properly assess what is in his or her best interests. Nevertheless, the choice expressed by a young child is often very telling. It strongly suggests which parent has more closely bonded and it may also suggest which parent has been more nurturing.

Other factors include:

• Status Quo: If parents have been living apart and have established a pattern of the parent with whom the children live, the court might be inclined to continue that arrangement.
• Siblings: The court usually prefers to keep siblings together except in instances where the children's needs differ substantially. In that case, the court might be inclined to split them between parents.
• Environmental Stability: The court prefers to keep children in the same neighborhood, the same school and near the same friends. If one parent chooses to move out of the neighborhood, that becomes a factor for court consideration.
• Wealth of the Parent: Is the quality of the home suitable? Is there suitable space? What about cleanliness, neighborhood safety, quality of available healthcare, access to religious institutions? Each of these factors will be considered.
• Parental Stability: Is the proposed custodial parent stable? Is there a history of mental illness, drug or alcohol abuse, and promiscuity? Is there a criminal history or a history of violence toward self or child?

The Primary Parent

Not too many years ago, it was assumed by the courts that the mother, because she was at home and able to spend the most quality time with the children, was the best nurturer. But with more than 50% of mothers now in the work force, fathers have assumed new roles. The judge's determination concerning the primary parent is no longer based on the sex of the parent but rather the criteria listed above.

Being aware of the child's parental needs and meeting those needs requires insight and good judgment. For example, does the parent arrange appropriate doctor visits, attend scheduled meetings with the teacher, see to it that the child is involved in stimulating and educational after-school activities, oversee the child's personal hygiene and eating, share in age appropriate activities, listen to the child and help him/her resolve problems? And finally, who else lives in the house? Are there step siblings? A step parent? What is the quality of the relationship with these people? The standards to determine the primary parent are based on these questions.

Summary

In order to rule in the best interests of the child, the court must be concerned with the stability and judgment of the parents as well as the quality of the relationship between parent and child. Sometimes the choice is complicated by the age and sex of the child. For example, older boys may prefer to live with their father regardless of negative factors. But since the court, in general, encourages parents to promote a two-parent relationship, this kind of preference need not upset the general criteria.

Most importantly, parents should not be bad mouthing each other. Nor should there be denial of visitation no matter who is the primary parent. Sometimes it is important to remind yourself that although you are divorcing each other, neither of you is divorcing your children.