Most parents who have been through child custody or visitation proceedings in family court will be familiar with the term: “best interest of the child”.
Whether you are establishing an order for child custody and child visitation for the first time, or going back to court to modify an existing parenting plan, your entire case will almost certainly be decided by a judge applying a “best interest of the child” standard to the particular facts of your case. No term gets thrown around more in family law.
Who decides what’s in the child’s best interest?
Given the importance of this term in litigation involving children, you might assume that when the Legislature adopted this term, the definition would also have been set forth in the Family Code. Sadly, you would be mistaken. The Family Code is silent on what exactly best interest of the child means; the Legislature has preferred instead to let judges decide what best interest of the child means.
These judges may or may not be experienced in family law litigation, yet they decide what the best interests of the child means for every single litigant who comes before them on an individual basis, day in and day out. It should not be surprising to you, then, that you can encounter wildly different orders even when comparing two cases which appear to have nearly identical facts. Ten judges could watch a video of one hearing and determine that the “best interest of the child” requires ten different custody and visitation orders.
By law, judges are required to decide what the best interest of a child means only according to the facts presented to them on an individual, case-by-case basis. Frequently, however, we encounter judges who base their decisions less on the particular facts before them and more on their own preconceived notions regarding child-rearing and the roles of separated parents. It is your job and responsibility to present your case to the judge in the most effective manner, taking into consideration both the law and, hopefully, the opinions of the particular judge before whom you are appearing.
How do I show the judge what’s in my child’s best interest?
One of the best reasons to hire an attorney to represent you in a child custody matter is because this standard of best interest so widely differs from situation to situation and courtroom to courtroom.
A local attorney who practices family law will be better suited to know and manage specific judge’s perceptions of the “best interest of the child,” and help to shape your argument accordingly. Moreover, an attorney who frequently appears before a particular judge will almost certainly be able to predict how the judge may act in your case based upon their past experiences. This is a luxury the self-represented litigant will not have.