Each state has some sort of guidelines when it comes to deciding the best interests of the child. The best interests of the child is the standard courts use to determine custody & visitation. Even though these standards follow basic principles across all states, the factors used to make this determination varies from state to state. This explains why the outcome in your case may look significantly different than the outcome in a case very similar to yours, both within the same state and across states.
Best Interests of the Child Standard Defined
Although there is no definitive standard definition of “the best interests of the child” there is a general principle. That general principle is “…fostering and encouraging the child’s happiness, security, mental health and emotional development.” Currently, every state has specific factors to help its courts make custody determinations. However, how the courts uses and weighs these factors varies from state to state.
Specific Factors: Mandatory vs. Discretionary
The states’ specific factors all center around these principles, they all have a variation and/or an extension of the following:
- Emotional ties and relationships between the child and their parents, siblings and family members;
- The parents’ capacity to provide a safe home, with adequate food, clothing and medical care;
- The mental and physical needs of the child;
- The mental and physical health of the parents;
- The presence of domestic violence
Some states require that some or all of their specific factors to be considered, leaving little room for discretionary guidelines. Other states, on the other hand, have rules that give them permission to use discretion in applying their specific factors in addition to factors not expressly stated.
Variations of Statutes’ Definition
Most states have “shall” in their statutes, which makes adhering to the specific factors a requirement. Like Virgina, for example, every one of its ten factors must be considered by the States with statutes that state “shall” with respect to consideration of its specific factors leave the courts with little discretion. The courts have little wiggle room to consider factors outside of the specified factors, unless the statute says so.
In Virginia, for instance, the courts MUST consider all ten of its factors when making custody determinations. So in other words, every custody case in this state will be scrutinized using every single one of its 10 factors no matter what. This means that a case where parents are making allegations of medical neglect, educational inadequacies, inappropriate living conditions that the courts do NOT have to consider these allegations when applying the factors because these are not explicitly listed in the state’s statute. (Read the factors here https://law.lis.virginia.gov/vacode/20-124.3/).
However, in Connecticut, it’s Gen. Stat. Section 46b-56( c) lists 15 factors. It reads in part “…the court shall consider the best interests of the child, and in doing so, may consider but shall not be limited to, one or more of the following factors.” Some of the factors are the temperament and developmental needs of the child; the wishes of the child’s parents; the willingness and ability of the parents to coparent, amongst several others. So even though it lists specific factors, the courts are not obligated to make its determination based on these factors. Connecticut courts can use factors that are NOT even on the list at all.
Impact on the Judge’s Determination
The weight of the factors, the use of the factors and the discretion with respect to both renders different outcomes for every case. The states where courts have more discretion in considering its factors are more likely the ones with inconsistent decisions. This can be an advantage to some, and a nightmare for others.
If you know for certain what factors the judge must consider, it is easier for you to prepare your case. However, where the judge is not mandated to follow any specific guidelines, it is much harder to pre-determine what to focus your attention on.
It is imperative to conduct thorough research before filing for custody. If you can get a list of factors with an understanding of how they apply, then you are sure to put yourself in a much more advantageous position.
Feel free to contact me to discuss options for your divorce or custody case. www.thedivorcesolutionist.com/contact-us