The “Best Interests” Standard for Custody & Visitation

The standard for every judicial decision concerning a child is what is in the child’s “best interests.” This is the legal standard in most states and countries. “Best interests” is referred to by the United Nations Convention on the Rights of the Child as the paramount standard for all actions and decisions concerning children. The concept of the child’s best interests is complex and its content must be determined on a case-by-case basis. The phrase “best interests” is not entirely defined by Oklahoma Statutes, but there are guidelines for attorneys and judges.

Best interest factors have been identified by Oklahoma’s appellate courts, including:

1. the desires of the child;
2. the emotional and physical need of the child now and in the future;
3. the emotional and physical danger to the child now and in the future;
4. the parental abilities of the individuals seeking custody;
5. the programs available to assist these individuals to promote the best interest of the child;
6. the plans for the child by these individuals or by the agency seeking custody;
7. the stability of the home or proposed placement;
8. the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and
9. any excuse for the acts or omissions of the parent

When a court is making a custody decision, the judge is required to consider which parent is more likely to encourage a relationship between the child and the other parent. In other words, if a parent behaves in a way that discourages the relationship between the child and the other parent, such as speaking poorly about the other parent, denying visitation, or making false allegations in court about the other parent, the judge can take that behavior into consideration and award custody to the other parent. Assuming all other things are equal, a parent who can demonstrate encouragement of the relationship between the child and the other parent, including facilitating visitation, agreeing to reschedule visitation when necessary, and sharing child-related information with the other parent, will be a better candidate for custody than a parent who discourages the relationship between the child and the other parent. The judge may also consider the preference of a child concerning custody and visitation, especially if the child is 12 years of age or older. The child’s preference is not necessarily binding on the court.

A recent development in the law creates a presumption in favor of shared parenting and joint custody. Contested joint and sole custody determinations are made on a case-by-case basis based on the particular and unique facts of each case. It is improper and unconstitutional for a judge to give custody to a parent based solely on that parent’s gender. Neither a mother nor a father may presume they will be awarded custody based on their status as “mother” or “father.”

When a parent complains about the behavior of the other parent, the complaining parent must show a “nexus” or a connection between the other parent’s behavior and the impact on a child. It is possible for a parent to engage in socially suspect, immoral and even criminal behavior and still be fit to have custody, so long as the child is not adversely affected or at risk.

A parent is presumed unfit to have custody if the parent is or has been:

• a sex offender
• substance abuse dependent to the extent that the parent is a danger to himself or herself or another person as a result of the substance abuse dependency
• convicted of domestic abuse within the past 5 years
• living with anyone who is a sex offender or who has been convicted of domestic abuse within the past 5 years

If a parent is found by the custody judge to have engaged in domestic abuse, stalking or harassment, that parent may not have custody or unsupervised visitation. These factors are the same factors for protective orders. A protective order involving only one parent and a non-parent entered by a different judge in a different court can drastically impact a custody case between two parents.

Custody and visitation cases are fact-sensitive. Best interests determinations involve consideration of the needs of each child and the parenting capacities of each parent. Judges have broad discretion to make decisions about children. A parent involved in a custody or visitation case should focus on child-centered facts that will help the judge make the right decision. When available, independent, objective evidence, such as photographs, records, grades, and written communication, can bolster a parent’s case for custody.