The Post-Divorce-Parenting Glossary

• What is the better parent standard in a child custody case?
• How will a court determine if a parent meets the better parent standard?
• How does a parent prove they are the better parent?
• Is the "better parent" standard fair?
• Are there attempts to fix issues with the "better parent" standard?
• Is it necessary to prove the "better parent" if seeking joint custody?
• What happens if a parent fails to prove the better parent standard?
• How is the better parent standard different from the best interest of the child standard?

What is the better parent standard in a child custody case?

The "better parent" standard is the burden of proof placed on a parent or person seeking sole custody of a child.  When a parent is seeking sole physical custody of a child, that parent has a much higher burden of proof than they would if seeking joint physical custody.  That higher burden of proof is the so called "better parent" standard that the family court uses to make a decision about who will have custody in a child custody case.

How will a court determine if a parent meets the better parent standard?

A family court will base any decision involving child custody on the best interest of the child standard.  The court will need to find that the child is better off with one parent having sole custody, rather than both parents having shared custody or joint custody.  To make that determination, the court will consider a wide range of issues, such as the child's healthy eating habits, sleep routine, extra-curricular activities, and opportunities that will exist if that parent gets sole custody.

How does a parent prove they are the better parent?

If a parent makes a decision to pursue sole custody, it will be necessary to prove the "better parent" standard in family court, assuming the other parent decides to oppose sole custody.  If sole custody is agreed on via mediation, litigating is not necessary and the "better parent" standard is a moot point.

If the child custody case does go to court or arbitration, it is important to not denigrate the other parent while arguing the case.  When a parent attempts to make themselves appear to be the better parent by making the other parent look bad, it typically has the opposite effect.  The accusing person looks spiteful, and if revenge is the motive for seeking custody, the judge or arbitrator is likely to sense it.

Have evidence
Be sure to have evidence for any statement made to the court.  If unable to back up a statement or accusation with evidence, it is likely to become a "he said, she said" argument that has no weight in court.  Examples of evidence that can be used to present the "better parent" standard can be reports cards.  If the child gets good grades and currently lives with the parent attempting to get custody, the report cards can help the case.  Conversely, if the child is getting poor grades, that can also be used as evidence to show the parent with custody is unfit.  Other forms of evidence can be emails, voicemails, letters, or other documents that show is or is not fit to have sole custody.  Note that for any evidence presented, three copies will be needed so the other parent, their attorney, and the judge each have their own copy.

Use witnesses
Witnesses can help if they are available.  If there are teachers, tutors, child-care providers, friends, and family members that can attest to you tend to be the primary care provider, a judge or arbitrator might consider that when deciding on custody.

Be well-dressed
Court is a formal environment and showing up to court with a poor appearance can make that parent appear disrespectful, and even unintelligent.  Court is not the time to be casual.  Men should wear a suit and tie, be clean shaven and ideally have a conservative hair-style.  Women should where conservative slacks, a dress, or a long skirt.  Jewelry and other non-conservative embellishments should worn minimally or not at at all.

Is the "better parent" standard fair?

One of the issues with the "better parent" standard is that it looks too much to the past as an indication of who meets the definition of "better parent".  For example, if one parent has worked to provide for the family while the other stayed home with the children, the court is likely to consider the one who stayed home as the "better parent" because of the amount of time spent with the children.  Unfortunately courts do not consider how each parent would adjust following the divorce.  Courts often make an assumption that the parent who worked to support the family before the divorce or separation will continue to do so, and they will therefore award primary custody to the one who stayed home.  The parent who worked then becomes the noncustodial parent with visitation rights and is likely to pay child support to the custodial parent.

While the tender years doctrine no longer exists, courts are more likely to award sole custody to women than to men.  The interpretations of the "better parent" standard are part of the reason for this disparity.  More women are stay-at-home moms when they are married.  Thus, if they divorce, they are likely to be able to show they spent more time with the children and deserve sole custody.

Are there attempts to fix issues with the "better parent" standard?

While family law is always evolving, currently the best interest of the child doctrine and the better parent standard are used as the basis for determining if a parent should get sole custody.  Certain groups are attempting to change aspects of family law with regard to child custody cases.  Father's rights advocates tend to be the most engaged, primarily because fathers are not as likely to be awarded sole custody compared to women.

Compared to how child-custody cases are handled today, a slower transition to post-divorce parenting would solve many issues if temporary custody were in the form of joint physical custody combined with restrictions to parental relocation.  Proponents of such changes argue that the slow transition to post-divorce parenting life would give each parent to be better parents and lead to more joint custody arrangements.  Opponents argue that restrictions on parental relocation prevent the parent leaving the marriage from finding job opportunities that might be available elsewhere and prevent them from moving on after the divorce.

Is it necessary to prove the "better parent" if seeking joint custody?

If both parents are seeking joint custody, then neither parent needs to attempt to prove the better parent standard to the court.  Furthermore, most child custody cases are mediated -- not litigated.  If custody is decided via mediation, there is no need to prove the better parent standard.  The better parent standard only applies to litigated or arbitrated cases where a third-party is deciding child custody based on the child's best interests.

Often, when a parent gets sole physical custody they do not get sole legal custody.  The majority of custody arrangements give both parents equal amounts of legal custody.  This is referred to as joint legal custody.

What happens if a parent fails to prove the better parent standard?

If a parent fails to prove the better parent standard, they risk either losing custody or having joint custody with the other parent.  An issue with attempting to get sole custody via litigation is that if a parent "wins" custody, the other parent "loses".  The result of this is often that the children get put in the middle of a high-conflict post-divorce parenting situation.  For that reason, if the issues surrounding child custody can be settled via mediation, that is the best scenario for everyone involved.  Mediation is the ideal method used to resolve disputes for parents determined to have a child-centered divorce.

How is the better parent standard different from the best interest of the child standard?

The better parent standard can be thought of as a subset of the best interest of the child doctrine, that only applies to parents seeking sole custody.  The best interest standard differs in that it applies to all child custody related decisions.  For example, if a parent takes the children out of state and the noncustodial parent sues to have the children returned, the best interest of the child doctrine would apply -- not the "better parent" standard.

better, parent, standard, sole, custody, divorce, separation, unfit, joint, court