Best Interests of the Children, Part 2

Best Interests of the Children, Part 2 By Sandy Balick{4:00 minutes to read} This is the 2nd of 3 posts on the “best interests of the child” standard by which courts address child visitation and other parenting issues.

In Part 2, we’ll touch briefly on what’s involved when the courts, in their traditional role as part of the custody determination process, are called upon as arbiters of the children’s “best interests.” These interests comprise a list of considerations evolved by the family and matrimonial courts over the years as reflected in their reported decisions.

In addition to those highlighted in my last post, Courts, Parents and the Kids’ Best Interests, examples of “best interest” considerations include:

  • A court’s determination of which parent is more likely to foster future contact with the noncustodial parent;

  • The inability of one parent to be an effective co-parent;

  • The potential effect that a custody award to one parent might have on the child’s relationship with the other parent; and

  • The child’s own desires in regard to custody preference.

Court determinations are not made in a vacuum. They are made with the benefit of information and analysis. This information is marshaled and presented by the parents with the substantial assistance of their lawyers, in the form of testimony on their suitability as parents (often conflicting), supplemented, as the case may be, with testimony from therapists and other clinicians. The children are not silent in the process; their testimony is frequently heard through their court appointed attorney (“Attorney for Child”), whose fees are normally shared by the parents. This attorney’s testimony is usually based on his/her private discussions with the children, which are not conducted in the presence of the parents.

The necessity to collect and present evidence and/or testimony in court comes with a significant price tag. Expense may be less of a consideration where the parents are wealthy, but for many, the potentially hideous amounts poured into custody battles would have a better payoff if diverted to tuition savings and other child-oriented purposes. In this light, the almost wanton expenditure of marital assets on child-centered litigation seems profoundly contrary to the best interests of the children.

Costs aside, control of the custody outcome may be ceded to the court, and while the courts struggle mightily to do the right thing where children are concerned, both parents risk disappointment or worse. Where the child, through her/his attorney, has expressed a preference to live with one parent, there may be the possibility of a lingering rift between the non-custodial parent and child.

Parental acrimony often blinds parents to an important fact: that together, they likely know better than strangers, just what is in their kids’ best interests. This, coupled with the opportunity to exercise control over family arrangements in such a way that minimizes the financial toll of a divorce, make a compelling argument for a private solution.

Mediation provides a better way, and while it may not be suited to all couples, its virtues are compelling and should not go unexamined by those facing difficult custody issues.

More on the mediation process as applied to child custody in my next installment.

Sanford (Sandy) Balick, Attorney & Mediator, NY Sandy Balick signature
Sanford E. Balick, Esq.
Founder & Principal Mediator
Consensus Point Mediation, LLC.

Phone: (646) 340-3434
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