The Best Interest of a Child in Custody Cases

Posted: February 21st, 2017 by

All states have some type of statute requiring that “the best interest of the child” be considered when making a custody decision. Pennsylvania’s custody statute, 23 Pa.C.S. Ch. 53, defines the child’s best interest via 16 factors affecting the safety of the child, ranging from which party is more likely to encourage and permit frequent and continuing contact between the child and another party to the mental and physical condition of a party or member of a party’s household. Sandwiched in between is “the well-reasoned preference of the child, based on the child’s maturity and judgment.” New Jersey’s custody statute, N.J.S.A. 9:2-4, offers 14 similar factors, including “the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision.”

But, how can best interest really be determined when no judge is required to interview a child in either Pennsylvania or New Jersey according to Pa.R.C.P. 1915.11-1(b) and N.J.R.C.P. 5:8-6? Realistically, I get that there is no way courts have time to interview the countless children involved in custody disputes. One avenue to explore is appointing guardian ad litems more routinely in family law cases since Pa.R.C.P. 1915.11-2 and N.J.R.C.P. 5:8B allow these appointments to assist in determining a child’s best interest. For cases involving abuse or neglect, Court Appointed Special Advocate, (CASA), chapters exist in both Pennsylvania and New Jersey as another resource for the judiciary.

From my standpoint as former litigant, a minimum of one meeting between the court and the children, at least those of school age, should take place before a final custody order is issued to discern what is really going on with that family. Although not all kids tell the truth—many are coached or unduly influenced by some parents—not all parents are truthful either. Some parents go so far as to attempt brainwashing their children into disrespecting the other parent, a syndrome more commonly known as “parental alienation.”

I left my mentally and physically abusive ex when our daughter was 18 months old. I suspect he never forgave me for leaving him and filing protection from abuse petitions; yes, plural—criminal and civil—resulting in orders against him, which in turn resulted in the ad nauseam litigation of our divorce, custody and support issues until our daughter turned 16. I coped by immersing myself in learning the healthiest ways to raise a child of divorce alongside a rather unhealthy quantity of Ben & Jerry’s to drown my anxieties. The most helpful tip for me was that, psychologically, kids think of themselves as half mom-half dad, so parents shouldn’t encourage children to think poorly of the other parent to avoid any negative thinking about that half of themselves. To help our daughter cope, her nighttime book basket always had a copy of “Dinosaur’s Divorce” and a couple of others to facilitate conversation whenever she felt that need.

Although she is now 24 and my ex is deceased, I’ll never forget the day our daughter, at age 8, returned from a visit stating that she wanted to go live with dad. My internal reaction was “holy crap, how can this be and where on earth is this coming from?”; my physical reaction was much more composed after many years of practice from the shocking statements that would occasionally pop out of our child’s mouth just after a visit. I immediately sought the services of a mental health professional with experience in child custody issues. After just one visit between our daughter and the psychologist, she came out stating that she didn’t want to live with dad, but with me. When I asked her how she reached that conclusion, she said that she was asked to think about who did things for her: Who took her to the pediatrician? Who checked her homework? Who made her lunches? The resounding responses were “mom does all that for me.” Inside, I was silently cheering Dr. V. When I later asked why she thought she wanted to live with dad, her response was that it was easier to say yes to him and no to me. Calling Ben & Jerry’s …

Combining households with my current husband made my ex even more hostile toward both me and our daughter by the time she was 10. When she returned after a visit reporting that dad was both mentally and physically abusive with her, my only question was whether she was ready to face him in court with those accusations. She was, so off we went. Although I put her back in counseling during this period, I’m not sure anything prepared her for the difficulties she had to face. My petition to modify—in Pennsylvania—was pretty much heard by one judge over the course of 18 months. But, at one point, our case was assigned to another judge who took a whole day of testimony. Thankfully, that judge checked the record and deferred our case back to the primary judge who had already spent significant time hearing our case. After interviewing our daughter in camera for what seemed like an eternity—about 20 minutes or so in reality—the primary judge came out with clear directives that were spot on for our child’s needs. Finally, someone listened and understood what our daughter had experienced. I sometimes wish we had been able to litigate in New Jersey, where the wasted day of testimony would have never happened with their “one judge, one family” system.

I continue to be haunted by the experiences of clients and their children, with either extraordinary court delays or those accused of alienation. I am especially troubled to hear of a parent accused of alienating the child from the other parent when it is the accuser who appears to be the proponent of egregious parenting. Although parents are responsible for following court orders, it can become quite difficult with teens and even preteens who firmly believe they do not want to spend time with the other parent whether from the normal teenage separation process or as a victim of parental alienation. Think about it: parenting involves teaching independence, which includes more give and take as the child grows. When the answer is still no, at least kids have had an opportunity to have a say and hopefully, a sensible explanation to help digest when the parent card needs to be pulled.

This process should also apply to judicial orders given today’s kids’ strong sense of entitlement. I think an order would be easier for parents to implement if the children felt they were at least heard by the arbiter or an advocate appointed specifically on their behalf. While Pennsylvania is in the process of considering whether to bring back parenting coordinators—see Lisa Shapson’s article, “It Should Be PC to Use a PC” at—it should also be considering a way to mandate one judge for, at a minimum, the duration of a petition, as well as consideration of every child’s point of view before a final custody order is issued.

Reprinted with permission from the FEBRUARY 21, 2017 issue of THE LEGAL INTELLIGENCER (online). © 2017 ALM Media Properties, LLC. Further duplication without permission is prohibited. All Rights Reserved.


Comments are closed.