The Best Interest Of The Child

September 27, 2021 O'Connor Family Law Divorce

What Is Best?

When there are issues of custody in question – regardless of whether or not it’s a stand-alone complaint or part of a divorce – the court is going to hold every argument and question against one question: What is in the best interest of the child?

When trying to make a determination on a child’s interests, the court looks at a few things:

  • That which supports the physical development of the child.
  • That which supports the emotional development of the child.
  • The ability to provide for the safety of the child.
  • The ability to provide for security of the child.

Each individual judge may deviate from this in some way, but it always focuses on the idea that the child’s happiness and welfare is going to be paramount and take precedence over everything else. Generally speaking, a judge will also expect “happiness and welfare” to mean that each parent has a close and loving relationship with their child, bolstered by mutual respect and successful co-parenting. In practice, we realize that this isn’t always going to work out.

Finally, the court will try and ensure the most consistent living arrangement for the child. Judges are typically reluctant to pull a child out of the school they’re enrolled in, upend child care routines, or living arrangements. It’s not unheard of – but consistency is important. Especially when a child is younger.


Before we actually dive into issues that might put one parent at a perceived disadvantage in their argument for custody – it needs to be pointed out: being a cheater doesn’t make someone an unfit parent. Nor does their personal love for you. Nor does the fact that they live with their parents. You not liking them (or them not liking you) is not a reason for them to not have reasonable access to the children.

A parent is only going to be considered unfit if there is a circumstance which upsets the child’s welfare. Evidence of physical or emotional abuse, the inability to provide stable housing, the exposure to new romantic partners that are physically or emotionally abusive, an ongoing or recent pattern of drug or alcohol abuse – these are all things that will challenge someone’s fitness as a parent in a custody dispute. Of course, this is not an exhaustive list, but it’s an example of things that will hurt an argument for custody.

If a court finds any of these issues present, it can mean the other parent is given primary physical custody, limited visitation, or supervised visitation that requires what amounts to a chaperone for parenting time.


Above all else, you need to show the court that you are invested in, and actively engaged in your child’s life. Don’t blow off opportunities to be with your child(ren). Stay involved with their education and extra-curricular activities. Don’t be upset that your child wants to attend a sports camp for 10 hours a day during your scheduled parenting time – encourage their success instead. Where possible, try to constructively and positively co-parent with the other parent. Even if it means repairing the relationship to some extent. Remember – the court wants the child to have a relationship with both parents. Your effort to support that, even if you feel like you’re beating your head against the wall, will only be a benefit.


This is a harder subject to deal with. You get an amazing career opportunity in another state or hours away from the other parent. You can afford to send your child to a better school, live in a better home, and just improve your overall quality of life. However – courts may not view that move to be in the best interest of your child and issue an order that the child stay in Massachusetts. They may deny the relocation if it substantially harms the other parent’s access to their child, moves the child away from stable support systems, etc.

Custody cases can be difficult enough, but pushing for a relocation is an uphill battle. You don’t want to walk into that alone because you’re going to get one realistic shot, and if things go sideways, you could lose your custody outright or lose the new opportunity.


By the time a custody battle lands in court, it’s going to be tough to resolve. Usually there’s hurt feelings and the daggers are out for each other. Don’t get caught off guard, and do your best to ensure that your personal situation is compatible with raising a child. Even if you think you’re stuck in a corner, there can be ways to ensure that what’s best for your child, is you.