The Best Interests of the Child: What Judges Look for

Custody and parenting time determinations in all states is now based on the best interests of the child. Indiana has statutes enumerating the factors the court should consider when determining the best interests of the child in different situations. These statues also allow the court to consider any other factor that may be relevant to the child’s best interests. But what exactly are judges looking for when considering the statutory factors? This blog discusses the best interests of the child and what judges look for when deciding what those may be. 

Indiana’s custody order statute governs child custody orders and lists some factors that the court must consider when determining the best interests of the child (I.C. 31-17-2-8). These factors include, but are not limited to, the age and sex of the child, the interaction and relationship of the child with both parents, siblings, and anyone else significant in the child’s life, the child’s adjustment to his or her home, school, and community, and the child’s wishes, with more weight given to a child’s wishes if he or she is at least 14 years old. After reading these factors, it might still be unclear what exactly it is that judges look for when deciding what is in the best interests of the child. While this certainly will depend on the judge, many are looking for some of the same things. For example, when thinking about the age and sex of the child, some judges may still believe that younger children, of either sex, need to be with their mother. Known as the “tender years doctrine” this idea has officially been excluded as a basis for custody decisions. However, the statute still requires the court to consider the age of the child when making a custody determination (DivorceNet). As such, the child’s age might be considered in the preteen years when the child has a greater need for the parent of the same sex to be available on a regular basis.  

The interaction and relationship with parents, siblings, and other significant people in the child’s life is important to consider when deciding which parents home the child will be spending the majority of their time. While examining these factors, judges are looking at where the people the child has the best relationships with and receive the most positive influence from are physically located and how they are related to the child. The physical location and relation to the child are important, as granting one parent primary physical custody instead of the other, could mean that the child will be spending less time with that person. 

After reading the statutory factor, “the child’s adjustment to the child’s home, school, and community”. One might wonder exactly what does the child’s “adjustment” mean? When considering the child’s adjustment, judges take into account the child’s behavior: whether they follow the rules, show respect to others, do their best in school, and take responsibility for themselves. The child’s social skills, such as participating in extra-curricular activities, having manners and being polite, controlling their emotions, making friends, and having the ability to resolve conflicts on their own. Whether well-adjusted or not, a judge will next consider how the child got that way. Does the child behave when with one parent, but not while with the other? Do their grades suffer when spending more time with a particular parent? Does one parent fail to facilitate the child’s participation in activities or push the child to “do too much”? There are many questions that a judge may ask themselves when considering this statutory factor. 

The child’s wishes, with more weight given to a child who is at least 14 years old. This factor is relatively easy to understand in terms of what a judge is looking for, but a little more complex when a parent wishes for the child to tell the court what outcome they would like to see. Many judges find it inappropriate for a parent to call a child to testify at a custody hearing. Some may simply be too young to be sworn in, as they do not know the difference between the truth and a lie, and/or do not understand what perjury means or how important it is to tell the truth in court. Judges also tend to believe that even when a child is old enough to testify, they should not be required to say which parent they wish to live with while both parents are present. In order to combat this, Indiana law allows a judge to interview a child in chambers where the parties counsel may be allowed to be present, but not the parties (I.C. 31-17-2-9). While a judge may interview a child in chambers and listen to what they have to say, the child’s wishes are not a determining factor in any custody decision. 

Generally speaking, judges are simply looking for the best custody arrangement for each individual child, and do not wish to rob either parent of frequent and meaningful contact with their child (Family Lawyer Magazine). Shared custody arrangements are often favored, as are parenting plans created and agreed to by the parties without court involvement. An agreement gives the parties both more control over their parenting plan and can reduce the amount of time and money spent on a custody battle. 

This blog was written by attorneys at Ciyou & Associates, P.C. It is for general educational purposes. The blog is not intended to be relied upon for any legal matter or issue. The blog is not legal advice. This is an advertisement.


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