The Child's Best Interests Are What Matter in Court

Judges in family court make child custody decisions based on the best interests of the child, not the parents.

by Honorable Anne Kass. Ann Kass is a District Judge in the Second Judicial District State of New Mexico

A Michigan judge recently awarded custody of a 3-year-old girl to her father rather than continue custody with her mother with whom the child had lived since she was born. The father planned to have his mother take care of the little girl. The judge said he believes it is in the child's best interests to be in the daycare of her paternal grandmother rather than in paid daycare while her mother attends classes at the University of Michigan as a scholarship student.

The judge has been severely criticized by thinking men and women, including newspaper editors and columnists Ellen Goodman and Anna Quindlen. All the criticism I've read argues that the judge's decision is unfair to the mother. Anna Quindlen pointed out that if the mother had not gone to college but rather had stayed home and applied for welfare benefits, she would not have lost custody of her daughter, although, because raising children is not recognized as "work" by many Americans, she would surely have been criticized for "not working".

It is unquestionable that this decision was unfair to the mother, but the law says that custody decisions are to be based on what is best for the child, not what is best for the mother or best for the father.

A more productive topic for the critics to explore would be: What do the words "best interests" of a child mean and how should the Courts determine the "best interests" of a child?

According to the Michigan judge the best interests of this child require her to be cared for by blood relatives, not licensed, paid daycare providers. He did not explain, to my knowledge, the basis for that belief.

Most persons educated and experienced in child development matters would say that it is in the best interests of any child to remain in the care of the parent to whom the child is primarily bonded, unless that parent has significant parenting flaws. The child will almost always be primarily bonded to the parent who feeds, clothes, bathes, plays with, comforts, and nurses the child most of the time.

In the Michigan case, it may have been the maternal grandmother to whom the child was primarily bonded, if the news reports were accurate that it was she who raised the child while the mother completed high school. However, the law in America has consistently held that parents' rights outweigh grandparents' rights when it comes to determining custody of a child. That is, the law says it is in the best interests of a child to be raised by parents rather than grandparents, unless the parents are unfit.

Obviously, the words "best interests of the child" have no one, single meaning, which is why laws in most States define "best interests" by listing a number of factors. In New Mexico judges are directed to consider

  • the wishes of both parents;
  • the wishes of the child;
  • the relationship between the child and his parents, siblings and others important in his life;
  • the child's adjustment to home, school & community; and
  • the mental & physical health of everyone involved.

The matter of daycare is not a listed factor to be considered in New Mexico, and I am not aware that it is a "legal" factor in any other State, including Michigan. Whether daycare should be a factor in deciding what is in a child's best interests is the question the Michigan appellate courts must now decide. More accurately, the question may be whether daycare is properly the deciding factor as the Michigan judge seems to believe.

However, it is important to keep in mind that in custody cases, it is the child's best interests that matter, not the parents.

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