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The Best Interests of the Child Test

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In our blog last month about parental alienation, we mentioned the Best Interests of the Child Test in divorce situations. This article discusses that test, when judges have to make decisions about children because the parents can't agree. Divorces involving children oftentimes involve emotions running high and mutual resentment between the spouses. That can mean that the children suffer.


So a judge may have to step in to sort out whether joint or sole physical and residential custody is proper and how visitation, now called "parenting time," is scheduled. How he or she does this is called using the Best Interests of the Child Test. In that Test, "gender neutrality" is supposed to apply, although the old Tender Years Doctrine, which gives mothers preference in the care of infants and very young children, is still sometimes used.


The law in New Jersey gives a list of factors used by courts to decide which parent will be better suited for sole or primary custody: the parents' ability to agree, communicate and cooperate in matters relating to the child; the parents' willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse; the interaction and relationship of the child with its parents and siblings; the history of domestic violence, if any; the safety of the child and the safety of either parent from physical abuse by the other parent; the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision; the needs of the child; the stability of the home environment offered; the quality and continuity of the child's education; the fitness of the parents; the geographical proximity of the parents' homes; the extent and quality of the time spent with the child prior to or subsequent to the separation; the parents' employment responsibilities; and the age and number of the children. If the parents are able to create a custody arrangement on their own, courts may decide to implement it as long as it doesn't run contrary to the child's best interests (in accordance to the above factors).

The Test was used in a 1976 case when a judge first compared the living arrangements and work record of both parents (the father had a stable job, while the mother was on welfare for no explainable reason), and then noted that the children had lived with the father for two years before the trial and expressed an interest in staying with him (while the oldest of the children was only 12, the court said that the child could offer a "rational judgment" and used the child's opinion in its decision). Even though not all the children biologically belonged to the father, the Best Interests Test can override biological parents if they are less able to take care of the children.

Because divorce can bring about massive upheavals in a child's life, the Best Interests Test is also intended to ensure that any change in the child's living situation must be the best possible solution. In a 1998 case, the father wanted to switch the custody arrangement from joint custody to his sole custody, and to permanently remove the child from New Jersey to Arizona. The court said that while the reason for the father's move was made in good-faith (in an attempt to obtain a better career), both parents were equally bonded to the child, had stable living environments, and had equally strong parenting skills, so the change in custody arrangement and cross-country move would only be a personal benefit to the father and not a particular benefit to the child.

The Test, while detailed, is not an objective one; judges have the ability to highlight or downplay the factors as they see fit, according to the facts of the particular case. Every family and every child is unique - and courts take into account the children's physical and psychological needs, the family dynamics, and other factors like talents that may require specialized training, or special needs. While the Best Interests test isn't an exercise in "hard science," it's an important tool that the courts use to best ensure that the child will make it through the divorce or separation with the least amount of trauma. Loree Varella, Rutgers School of Law Newark candidate for a JD degree in May 2016 collaborated on this blog. She is Associate Editor of the Rutgers Computer and Technology Law Journal and will soon serve as Managing Research Editor of that publication.

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