What is 'the best interest of the child' and what factors are important for a court ruling? Here you will learn more about what it means and what factors can influence the court's assessment.
The District Court's task is to determine which outcome in the case is most compatible with the best interest of the child. The factors that the court bases its ruling on depends on the claims made by the parents. It can involve "everything," such as custody, residence and visitations. It can also concern only where the child should live or whether the child should have visitations with a parent or not.
Based on the sections in the Children and Parents Code and legal precedent in the field, there are often several circumstances for the Court to consider.
One of the most important factors to consider if there are any concerns regarding the parental ability with one or both parents. This is particularly relevant in matters of custody and residence where one parent has significant responsibility for the child in everyday life. Behavior that may make a parent less suitable include if the parent:
Another important factor is the parents' ability to cooperate on matters concerning the child. The ability to cooperate is so important that it is specifically mentioned in the Children and Parents Code, Chapter 6, Section 5.
Practically, this means that cooperation in joint custody should function relatively smoothly. The parents do not always have to have the same opinions. But they must be able to handle their differences in a way that does not harm the child.
If there is information indicating that the child is at risk of harm in contact with one of the parents, the court should pay particular attention to that risk. The same applies if someone in the child's family is at risk. Here, the district court should make a risk assessment based on the circumstances of the individual case.
Another important circumstance is the child's need for close and good contact with both parents. The section means that the court should consider which of the parents is likely to promote close and good contact between the child and the other parent. A parent can thus "disqualify themselves" in a future process by sabotaging the child's relationship with the other parent today.
Children have a fundamental right to express their opinions and wishes about their lives, as stated in both the Convention on the Rights of the Child and the Children and Parents Code. This means that the court must take into account the child's wishes, considering the child's age and maturity.
The law does not specify a particular age when the child's wishes should be taken under consideration. Thus, younger children have the right to receive information about what is happening in their lives and they also have the right to express their opinions. From approximately twelve years of age, the child's own opinion carries more weight. The right to express their opinion also means that children have the right not to have an opinion, which can be important to avoid situations where children feel pressured to choose between their parents.
The principle exists to provide stability for the child by allowing them to remain in their familiar environment. It serves as a protection for the child from having to move to a new environment with new routines. Practically, the continuity principle can sometimes conflict with the child's right to a close and good relationship with both parents. It becomes a case-by-case assessment. The significance of the continuity principle should not be overstated. The adjustment issues that a relocation of the child may entail can, in some cases, be outweighed by the benefits expected from the child having better contact with both parents through the move.
The court's assessment of the best interest of the child is made by weighing the circumstances of the individual case. The court particularly looks at:
Depending on the circumstances, one or more of these points may influence the court's assessment of the best interest of the child. Also, included in 'the best interest of the child' is the principle that no other reasons should outweigh what is best for the child.
Elisabeth Scholander Family Law Attorney and Mediator, Specialized in Conflict Resolution for Families
29 April 2024
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