Best Interest of Child Test in Custody Determinations

In deciding custody of a child, a judge or master must determine what would be in the child’s best interests. This standard is used whether the child is being placed temporarily until a full custody hearing can be held, or in awarding joint or sole custody to a parent, pursuant to a divorce, or in placing the child with a third party as a result of a custody dispute.


The factors used by a judge in deciding what is best for a child focus on the competency of the parent, the needs of the child, the parent’s ability to meet those needs, and the relationship between the child and the parents, brothers and sisters, and other relatives. Thus, a judge will look at the age of the child and the parents, the education level of the parents and the ability of each parent to provide for the education of the child. Does the parent have the time and ability to meet the needs of the child, like getting her to school and after school activities on time, taking him to the doctor, or tending the child when she is sick? Does the child have any special needs? Does the parent have any special mental or physical needs that would hurt that parent’s ability to care for the child?

A judge will look at the relationship between the child and each parent. In a divorce situation, the judge will look to see what kind of custody arrangement the parents worked out, if any. The judge will also look at the child’s relationship with his brothers and sisters, with grandparents, and with aunts and uncles. One important factor is the ability of one parent to encourage a strong relationship between the child and the other parent. On the other hand, the fact that the parent has formed a new relationship or has remarried is usually not a factor except where the new relationship is harmful to the child. Only if a child is old enough will a judge consider the preference of the child.

In considering custody of a child between a parent and a nonparent, the judge will first look at whether the parent is competent to care for the child. It is only in very rare situations where a judge will find that it is in the best interests of the child to place that child with a nonparent, where the parent is fit to be a parent. This usually happens where a child has lived most of his or her life with a grandparent or aunt and then the parent returns to reclaim custody. Even in situations where a parent is found not fit to have custody of the child, most states strive to assist parents to regain custody by helping them learn to be better parents.