Courts, Parents and the Kids’ Best Interests

 Courts, Parents and the Kids’ Best Interests by Sandy Balick{2:48 minutes to read} As a family mediator, I’m naturally inclined towards the mediation process, in the strong belief that it offers a much better forum in which to thrash out issues, both large and small, than the courtroom. This is especially the case, I believe, when it comes to finances and the equally combustible issue of child custody (we prefer the reference “parenting” to “custody” given the latter’s grim institutional implications), which is the focus of this article, the first in a series of 3 posts.

In the case of children, it’s all about their “best interests,” the touchstone phrase that affords courts very wide latitude in crafting parenting orders. The statute (Domestic Relations Law § 70 (a)) does not recognize automatic custodial right in one parent or the other. In the very denatured style of statutory law, it states: In all cases there shall be no prima facie right to the custody of the child in either parent, but the court shall determine solely what is in the best interest of the child, and what will best promote its welfare and happiness, and make award accordingly. Just what these interests are is amplified through statutory language and the prose of countless court decisions.

A detailed exploration of these factors would occupy many pages. Suffice to say, the court will look at a wide range of factors—many of them commonsense-based, such as

  • the “circumstances of the case,”

  • the quality of the “home environment,”

  • the “ability of each parent to provide for (a) child’s emotional and intellectual development,” and

  • the “relative fitness of the respective parents,”

to name but several prominent factors.

How these factors figure into the custody or parenting plan process varies, depending upon whether the court is called upon to weigh the factors or whether the parents are able, through mediation or an agreement process, to act as their own court, so to speak, and hammer out a plan that will both satisfy them and the court (in its review function) that the crucial “best interests” have been satisfied.

Electing one route or the other will likely have many implications for your particular situation. I’ll examine potential differences in the next 2 installments of this series.

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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