Best Interests

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

Arkansas law states that the primary consideration in child custody is the welfare and best interests of each minor child involved in the case. Arkansas statutes and appellate decisions do not provide a complete definition of best interests or a comprehensive list of factors for determining best interests. To the contrary, Arkansas appellate courts have said, “There is no exhaustive list of factors a circuit court must consider when analyzing the best interest of the child.” This is because child custody disputes are largely comparative – between two parents – and situational. What is determined to be in one child’s best interests in one case may be different from another child’s best interests in another case with very similar facts. You cannot predict what a judge may decide based solely on what happened in a separate case.

Parents, attorneys, and judges have some guidance from Arkansas law. When determining the best interests of the child, courts should consider:
● The psychological relationship between the parent and the child
● The need for stability and continuity in the child’s relationship with the
parents and siblings
● The past conduct of the parents toward the child
● The reasonable preference of the child
Promiscuous conduct or lifestyle in the presence of a child may be a factor against a parent receiving custody. Courts are given more guidance and factors to consider in certain types of contested cases, such as a request to relocate a minor child, grandparent visitation, or changing a child’s name. Otherwise, judges deciding child custody cases have broad discretion to make best interest determinations based on the particular facts and circumstances of each individual case brought before them.

The law favors joint custody. Generally, each parent should have frequent and continuing contact with the child. If one parent continuously disrupts the relationship between the child and the other parent, the nondisruptive parent may receive custody. In a child custody dispute, the court may consider which parent is more likely to facilitate frequent and continuing contact between each child and the other parent and award custody to the least disruptive parent. It is presumed that custody of a child may not be placed with a parent who has been determined to have engaged in a pattern of domestic abuse. A registered sex offender may not have custody or unsupervised visitation with their child unless the court specifically determines that the sex offender does not pose a danger to the child. Courts are prohibited from making child custody decisions based solely on the gender or religious preferences of a parent. Courts may not make custody awards to gratify the desires of either parent or to reward or punish a parent. A judge may consider the sexual orientation of a parent only if there is evidence that there is actual harm or adverse effect to a minor child as a result of exposure to the parent’s relationship. A parent’s financial resources are usually irrelevant, except to the extent they may impact that parent’s ability to provide a stable home for a minor child.

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 and decided based on each case’s specific facts, with the child’s best interests being the primary consideration.. 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 and evidence 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. No parent should assume they will be awarded custody or primary status without admissible evidence showing why that outcome would be best for each minor child involved.