What is in the Best Interest of the Child?

I spend about 85% of my professional life in the Family Court of South Carolina. Most of that time is spent on cases involving child custody or child abuse and neglect. The standard for determining which parent gets custody of a child is “what is in the best interest of the child?” Our Supreme Court has repeatedly stated that “in a custody dispute, the paramount and controlling factor is the welfare and best interest of the child“. What a slippery slope that can be. But it is better than the standards that we used to have. Way back, a long time ago, children were regarded as property and therefore, were usually awarded to the father. Of course, divorce was less prevalent then. But if it happened, the children went with the father. Sometimes that was good, sometimes it wasn’t. Later, as the “new” wisdom of the 1950s-70s came into vogue, the “Tender Years” doctrine was adopted, which stated that very young children were better off in the care of their mother. Well, that is not always the case either. So the law ultimately involved into where it is today, the best interest standard. The “best interest” is not defined anywhere in the code or the case law.

So how does one determine what is in the best interest of a child? I would submit that you cannot know what is in the best interest of a child until the child has grown up. In retrospect, you may be able to say that what was done with regard to child rearing resulted in a well-rounded, self-sufficient grown up. But you might also say that some areas could be better. Or that another approach would have produced a similar result. But that is of little help to a family court litigant, family court attorneys and family court judges.

Perhaps a better approach is to state what is not in the best interest of a child. This is easier. For example, most people would agree that being exposed to the following is not in the best interest of the child:

  • drunkenness on the part of either parent
  • drug use by either parent
  • domestic violence
  • child abuse (physical, sexual, emotional or verbal)
  • promiscuity on the part of either parent
  • truancy
  • tardiness
  • lack of necessary medical care
  • criminal activity

Those examples are pretty much universally agreed to be bad ideas for children. But what about these things?

  • adultery by a parent. Your gut reaction may be to say that is not in the child’s best interest. But what about when the parents have been separated for years and the new paramour is an active, loving part of the child’s life? Not so clear cut.
  • lessons and extracurricular activities. Your gut reaction might be that these are good. But what if they are too much? Have you read about the “Tiger Mother” in the news lately? What if the parent won’t take the child to the activities? This could also cause problems, particularly if the child is very involved in the activities.
  • a working parent. This the classic two edged sword. If a parent works, he or she can support the child, but cannot be there for the child 24/7. Do we want to teach children about work ethics? What if the child goes to work with the parent? Is that good or bad? Does it depend on the job the parent does? What about a parent who doesn’t work outside the home? He or she is there 24/7, but has no financial resources.
  • pets. One parent allows them; one parent doesn’t. Which is best?
  • an illiterate parent. Well, he or she can’t read. But surely the other parent was aware of that during the relationship? Is it now enough to deny custody?
  • exposure to “R” rated movies. Sounds like a bad thing, right? Well, maybe the child can handle it.
  • strippers, exotic dancers. Sounds bad. What if it produces good income and the child doesn’t know about it?
  • illegal immigrants

Other potential gray areas:

  • an obese parent.
  • an anorexic parent.
  • a parent with any chronic health condition.
  • homosexuality
  • mental illness
  • very old criminal histories
  • an alcoholic or drug addict that is in recovery

As an attorney and a guardian ad litem, I am aware that litigants want certainty as to what will happen in family court disputes. However, given that each case is as different as every child is different, uncertainty is the only thing that is certain. Judges are individual people, too. So while we do have law on the books that gives some guidance to judges in awarding custody, it remains very much a gamble in most cases. For this reason, it is best to have a good attorney to represent you if you have contested custody case. A good attorney will do you a huge favor and guard you against arguing about things that don’t matter and don’t impact what is in the best interest of the child. I am sure that most parents won’t want to hear my bottom line advice, but here it is: fighting for custody is a big gamble and ultimately will likely involve weighing the lesser of two evils. It is my experience that absent the obvious things listed above, really good parents seldom engage in full blown custody wars. Most of the full blown custody wars that I see involve parties that have significant personal, emotional or psychological issues on the part of at least one parent. These cases can only be remedied by trial and the only real sanction a judge can impose on the unreasonable party is to make him or her pay the other party’s attorney fees and costs.



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