Best Interest of the Child in Custody Cases

Best Interest of the Child in Custody Cases

Every state uses a “best interest of the child” convention in contested custody cases. This is a rather vague convention, and one that provides itself to judges’ individual beliefs about what’s best for children. There are some attributes, though, that you can expect a judge to take into account.

The Children’s age.

Even though the “tender years” philosophy has long been officially outdated many judges still surmise that younger children need to live with their mothers, particularly when the mother has been the primary caregiver. (Obviously, a nursing baby will do so.)

Each of the parent’s living situation.

There’s a little chicken-and-egg situation that surrounds the matter of where the parents live and how that impacts custody. From time to time, the parent that remains in the family home is awarded custody of the children since it allows the children balance and continuity in their day to day lives. From time to time, the parent that has custody is awarded the family home, for similar reason. If you are staying in your friend’s spare bedroom whilst getting back on your feet following the divorce, don’t think that you’re going to get primary custody of your children.

If you wholeheartedly want to spend a considerable amount of time with your children, be sure that your living situation demonstrates that. The vicinity of your home to your spouse’s home may also factor into the judge’s determination. The closer you are, the more possible the judge is going to order a time-sharing plan that provides both parents considerable time with the children. Where their school and their extracurricular activities are located might also matter.

Each parent’s inclination to support the other parents relationship with the children.

The judge is going to look at your record of collaborating—or not— with your spouse concerning your parenting schedule. The judge may also want to know things such as if you talk bad about your spouse in the presence of the children or interfere with visitation under any circumstances. The more accommodating parent will have an edge in a custody dispute—and a parent that is obviously attempting to alienate their child from their other parent is going to learn their lesson that courts frown upon that kind of interference.

Each of the parent’s relationship with the children prior to the divorce.

It every so often happens that parents that haven’t been that involved in their children’ lives unexpectedly develop a strong yearning to spend more time with them after the marriage has ended. In a lot of cases, this yearning is sincere, and a judge is going to respect it, especially when the parent has been devoted to parenting through the separation period. However, the judge is going to definitely take a little time to assess a parent’s change of mind and make sure that the custody request is not being made just to be victorious over the other parent.

Children’s preferences.

When children are older—usually, 12 and up—a judge might talk to them to find out their preferences regarding custody and visitation. A lot of states require courts to take into account children’ views, but others frown upon bringing the children into the situation at all. The judge may also find out about the what the children prefer from a custody assessor.

Continuity and stability.

In terms of children, judges are big on the current situation, since most of them believe that adding more change to the distressing transition of divorce typically isn’t good for children. Consequently, when you’re arguing that things are just fine, you’ve got a head start on a spouse that is arguing for a significant change in the custody and/or visitation schedule that’s presently in place.

Sexual orientation.

When you’re in a same-sex marriage in New Hampshire, Connecticut, New York, D.C., Iowa, Massachusetts, or Vermont, or in a civil union or domestic partnership in New Jersey, California, Rhode Island, Illinois, Nevada, Oregon Hawaii, or Washington State, and you and your partner are each legal parents of your children, your sexual orientation is going to have no influence on the court’s deliberation of custody and visitation issues. The same standards that apply to all divorcing couples is going to apply to you. Certain other states have laws that prohibits judges from using sexual orientation on its own to deny custody or restrict visitation. That is not going to mean you won’t face a homophobic judge, in those states.

And in many states, courts are authorized to, and do, take into account sexual orientation as a significant factor in custody and visitation determinations. It’s perfectly normal in those states for judges to decree that a parent’s same-sex partner cannot be around when the children are visiting, or that the parent can’t exhibit the children to a ” homophobic lifestyle.” And in the worst-case scenario, parents can be declined all contact with their children based on their sexual identity. The same might be true for transgender parents, that could face even more bias than same-sex parents, in addition to a absence of knowledge in a lot of courts concerning the transgender experience.

Abuse or neglect.

Clearly, if there’s obvious confirmation that either parent has abused or neglected their children, a judge is going to restrict that parent’s contact with them.

Each situation varies, so the judge might consider other factors in determining custody in your case.


  1. Emily Doskow, A. (2021, February 23). The best interests of the child: Factors a judge may consider in deciding custody. Retrieved December 2, 2021, from

Speak With Our Child Custody Attorney In Scottsdale

Our child custody and guardianship attorney in Phoenix and Scottsdale will advance your case with concern and personal attention and always have you and your children’s best interest in mind when offering legal solutions.

An experienced family law attorney will work with you to obtain the best possible outcome in your situation. We advocate for our clients, so they have the brightest future possible. Give us a call today at 480-999-0800 for a free consultation.


Jennifer Moshier Collaborative Divorce Lawyer Scottsdale Arizona
Jennifer Moshier, Scottsdale Divorce Lawyer

Recent Posts



Finding the right mediator can be difficult.


Divorce and Family Law

When a case demands litigation, you’ll have the benefit of 19 years of litigation experience in California and Arizona. But when a case demands collaborative law, or mediation, we can meaningfully describe why collaborative law or mediation may or may not be your best option.

Moshier Law services all of Phoenix and Scottsdale, Arizona. Jennifer and her team of professionals seek to resolve Family Law cases efficiently with your goals in mind.

Jennifer Moshier, Scottsdale Divorce Lawyer

Trail Potter  –  Divorce  Lawyer

You are now leaving

You will be redirected to

Click the link above to continue or CANCEL