The Post-Divorce-Parenting Glossary

Divorced-Parenting Term

Best Interest Doctrine

What is the best interest of the child standard?

The best interests standard (also called the best interests of the child doctrine) is a framework that family courts in the United States and some other countries are bound to follow when deciding on child custody cases or other disputes related to children.

How is child custody determined with the best interest of the child doctrine?

Following a divorce or separation, child custody is commonly an issue that is decided on by a family court.  Courts must make decisions on many factors, including, but not limited to:

As the court evaluates each question that comes before it, the judge must not only consider the state laws where the case has jurisdiction, but also it must consider questions about the parents, themselves.  These questions include, but are not limited to:

  • Does one parent have more suitable character than the other to be the primary custodial parent?
  • What is the quality of the children's relationships with both parents?
  • Does either parent have or lack the skills or time to be able to raise the children?
  • Are their any bad habits or addictions that may preclude on parent from raising the children?
  • Are either parents experiencing a long-term illness that may inhibit raising the children?
  • Have the children been living with one parent before the time?
  • Does a child have special needs, and if so, is one parent more suitable to handle those needs?
  • Do parents have a motive not in the children's interests for seeking custody?
  • Is either parent willing or not willing to promote a relationship with the other parent?

Are women typically awarded child custody with the best interest standard?

In the 1800's and early 1900's, men almost always were awarded custody in a divorce that involved children.  As the "tender years doctrine" became widely used in family law, women were almost always awarded custody.  The best interest doctrine is causing the custodial parent to shift again, this time more toward shared custody or joint custody arrangements.

Still, women do typically get awarded custody more often than men for various reasons.  Some reasons of the reasons that women get custody significantly more than men are:

Women simply want custody more than women in more cases.
If a parent doesn't ask for custody, that parent is not likely to get it.  According to statistics from, fathers want sole custody 33% of the time.  Mothers want sole custody 82% of the time.  These numbers do not add to 100% because of other possibilities like joint custody or custody to another person.  When joint custody is considered, fathers ask for joint custody 35% of the time, while mothers seek joint custody only 15% of the time.

We can make the following statements based on these statistics:

  • Mothers are a lost 2.5 times more likely to seek sole custody than the father.
  • Fathers are more than 2.3 times more likely to seek joint custody.
  • Mothers seek joint or sole custody 97% of the time.
  • Fathers seek joint or sole custody 68% of the time.

Some courts still hold on to a traditional view that women belong with the children more than men do.
While the best interests standard is designed to take gender out of the decsion-making process, judges are human.  Society is still likely to think of women as "parental" than fathers.  Whether intentional or not, bias is possibly one factor in at least some of the decisions that family courts make with regard to child custody; however, it is not likely the most significant factor in a court's decisions.

Other factors, such as who initiated the divorce, who has more spare time to devote to children, and who simply attempts to get custody are likely more of a factor in who gets the children than bias is.

The initiator of a divorce has a significant advantage in winning a child custody case.
A common scenario in a divorce is for women to initiate the divorce.  Two-thirds of all divorces are initiated by the wife, and if a child-custody battle is analogous to any other type of battle, the element of surprise is a critical factor in determining who wins.  A critical component of this "head start problem" is that the initiator is already through the grieving process, while the other spouse is only beginning it.  The initiator has likely already sought legal counsel, and has researched child custody options.  Once an unhappy spouse feels they are likely to win child custody, they are much more likely to go through with initiating the divorce.  The "unpreparedness" on the part of the other spouse will likely affect child custody for most of the their life after the divorce decree is finalized.

No parent should sign anything without seeking legal counsel.  Furthermore, if the initiator has attempted to move the children out of the home, the other parent should immediately seek legal counsel to stop this from occurring.  This is extremely important, because if a new status quo is established, the chances of undoing that status quo become extremely difficult.

What are some important child custody considerations with regard to the best interest standard?

The best interest standard is designed to put children above all other issues in a divorce or custody dispute.  Any arguments that parents make should be based on an understanding of the best interest standard.  This means it is crucial to consider how having custody will be better for the children than the other parent having custody.

Consider shared custody
The best interest standard might lead to shared custody, where neither parent is the primary custodial parent.  The benefits of shared custody over sole physical custody custody is that neither parents is in a more powerful position than the other.  This could become extremely important later to prevent a parental relocation dispute.  Shared (or joint custody) may also be better for the children's well-being.  According to an article in the Journal of Family Psychology:

"Robert Bauserman, PhD, of the Baltimore Department of Health and Mental Hygiene, reviewed 33 studies that examined 1,846 sole-custody and 814 joint-custody children. Both groups of children were compared with a sample of 251 kids in intact families. Bauserman found that children in joint-custody arrangements had fewer behavioral and emotional problems, higher self-esteem and better family relationships and school performance compared with those in sole-custody situations. And he found no significant difference in adjustment among children in shared custody and those living in intact family situations. Joint-custody children probably fare better, according to Bauserman, because they have ongoing contact with both parents."

In the case of sole custody, consider ample visitation
Visitation (or parenting time) is the time that the noncustodial parent is allowed to have with the children.  Some states have a threshold for how many nights per year that a parent should have in order to increase child support.  For example, in South Carolina, if the parent with visitation meets or exceeds 110 overnights per year, child support drops significantly.  Different states have different child support laws, so it is necessary to consult a family law attorney to learn the details.

Consider parental relocation restrictions
Most divorced or separated parents who return to court after the initial divorce, do so for two reasons:

  1. Child support modifications
  2. Parental relocation disputes

To prevent relocation litigation, consider addressing it in the initial separation agreement or divorce decree.  If it is not addressed, a very real possibility is that the primary custodial parent may have a life change, in which they decide to move a long distance from the noncustodial parent.  The noncustodial parent may not be able to stop this move, so a parental relocation clause is extremely important.

Under the best interest standard, can a parent get sole custody?

Yes.  Sole physical custody is often awarded under the best interest of the child standard.  Note that sole custody does not mean that only one parent has the children 100% of the time.  Typically, the noncustodial parent is awarded parenting time (i.e. visitation), and a visitation schedule must be worked out.

If seeking sole custody, the parent will need to convince the court that they are the better parent; however, the challenge is that this should not be done by vilifying the other parent.  Putting the other parent down will very likely backfire.
To appear as the better parent, that parent should focus on how they will raise a happy, healthy, and well adjusted child.  They should focus on their child's healthy eating habits, normal sleep routine, extra-curricular activities, and other facets of your child's upbringing that are important to a happy and healthy childhood. 

Another important consideration to illustrate is to show that, even if awarded sole custody, the child has a right to a happy relationship with the other parent.  The divorced children's bill of rights is a reminder to child-centered divorced parents that child need both parents in their lives.  Furthermore, there is strong evidence that a court will be much more favorable toward parents who are attempting to help their children enjoy a relationship with the other parent

While not all courts buy into parental alienation or parental alienation syndrome, if one parent slams the other parent in front of the judge, it will most likely lead that judge to question that parent's judgement.

How is the best interests doctrine different than the tender years doctrine?

The best interest doctrine is a newer standard in family law, virtually replacing the tender years doctrine.  The tender years doctrine almost always gave the mother sole custody of the children after a divorce, whether in the children's best interests or not.  The tender years doctrine was the primary basis for determining child custody during most of the 20th century.  The best interest standard does not give one gender priority over the other, although women do still get custody more than men for the reasons we mentioned above.

What are problems with the best interest of the child doctrine?

While the best interest doctrine is a significant step forward in child custody case law, it does draw criticism for several reasons.  Some of the arguments against the best interest standard are:

There is too much importance placed on the time during the separation and immediately after it.
When parents separate, it is very common for the initiator to take the children with them, while the other parent struggles to come to terms with the entire situation.  The parent that takes the children is essentially establishing a new status quo for the children, largely negating the life the family had before.  This new status quo is often used by family courts as a determining factor as to where the children will live and with whom.

It does not enter new life gradually, but abruptly and with high conflict.
Because of the turmoil that follows a separation where children are involved, both parents' lives are in an extremely volatile situation.  The best interest standard does not do anything to smooth the transition to a co-parenting type of lifestyle between the two parents.  Rather, it often thrusts the parents into a custody battle that one is likely not prepared for.

It is very subjective.
The best interest standard is a framework of questions that courts must consider; however, different judges will arrive at different decisions about those questions.

It opens up child custody to people other than the mother or father.
It is entirely possible that in a custody dispute, another person other than the children's mother or father could argue that they are more fit to raise the children.  Thus, a custody battle could ensue between the parents and another party.

It looks more to the past and not enough to the future.
A lot of emphasis is placed on not moving the children from wherever they currently live.  This viewpoint fails to significantly consider the future and changes that a parent will make later in order to adapt to their new life after the divorce.

A common example of this is parental relocation.  If a parent takes the children out-of-state, and a parent attempts to have them returned, they may very well fail to do so if the children have established a new life in that new state, even if that new address is only a few weeks old.  The best interest standard typically will not force the custodial parent back to the original location where the parents lived close together.  Family courts typically do not assume that the inevitable hardships and missed opportunities for children forced to endure long-distance travel between custody exchanges, are not in the children's best interests.  If courts telescoped their interprestation out to the future, they would see that children that do not live very close to both parents are likely to miss out on many extracurricular activities that children in nuclear families enjoy.

How is the best interest standard related to the welfare checklist?

In English Law, the welfare checklist is used to evaluate child custody cases.  There are similarities between England's welfare checklist and the best interest doctrine that is used in the United States.  Both attempt to put the children's needs at the forefront of a custody dispute.  The primary difference is the the welfare checklist is a set of specific questions that a court must consider in a child custody case, while the best interest doctrine is more of a loose framework.

What does the future of family law need to work on with the best interest standard?

In the future, family law will have the challenge of creating the best possible scenario following a divorce with children involved.  The goal should be a co-parenting relationship and a slow transition from married life to shared, collaborative, post-divorced parenting lifestyle.  Currently the best interest doctrine creates an environment of unnecessary and expensive litigation.  The future should aim to prevent that and replace it with cooperative parenting education.





How to win child custody
When divorced parents want to win child custody, they must understand how a family court will apply the best interest standard to decide the child custody case.
How have child cases custody evolved
The tender years doctrine has largely been replaced. Today child custody are base on putting children first.
What is the Best Interest Standard
What is it? When was the best interested doctrine started? What are some problems with the best interest standard?

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