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How the “Best Interest of the Child” Principle Affects Custody

If a child custody case must be settled by a judge, rather than negotiated and agreed upon by the two parents, they will determine both legal and physical custody using the "best interest of the child" principle. Many parents don't understand what this means, whether a judge has guidelines to use or they are ruling based on their personal beliefs. To help you understand for your own case, our child custody attorneys in Raleigh are sharing an in-depth look at what it means to focus on the "best interests of the child" from a legal perspective.

The Legal Statute of Determining Best Interests

The "best interest" principle is outlined in the North Carolina General Statute, Chapter 50-13.2 and with the ruling of Thomas v. Thomas, in 1968, was determined as the "polar star by which the courts must be guided in awarding custody." It outlines who is entitled to custody, terms, and other factors, but first, it lays out that

An order for custody of a minor child entered pursuant to this section shall award the custody of such child to such person, agency, organization, or institution as will best promote the interest and welfare of the child...the court shall consider all relevant factors, including acts of domestic violence between the parties, the safety of the child, and the safety of either party from domestic violence by the other party...Between the parents, whether natural or adoptive, no presumption shall apply as to who will better promote the interest and welfare of the child. Joint custody to the parents shall be considered upon the request of either parent."

The ultimate goal of child custody, from a legal perspective, is to create an arrangement that will foster positive relationships with both parents while encouraging the best outcomes for the child's happiness, security, well being, and development.

What Factors Determine the Best Interest

A judge will look at the following factors to determine a custody arrangement that will fall in the child's best interest:


A judge will look at the history of the parents, the current living conditions, and other factors that could make a dangerous living situation for a child. In extreme cases, they will deny custody where they feel a child's safety would be compromised.

Parenting Ability

The court will look at the parents' ability to meet the physical and emotional needs of a child. This includes basics such as food, shelter, clothing, and education, but it also includes whether a parent will be available for emotional support and guidance. In addition, the physical and mental health of the parents may be considered.

Age of the Child

Because young children require more direct care and nurturing, primary custody will more likely be given to the parent who has been the primary caregiver, if it's safe to do so. In the case of older children, they may be asked about their custody wishes and with whom they want to live and spend more time with. However, the child's wishes may not be taken into account depending on the other factors surrounding the case.

Consistency and Familiarity

Most custody cases in North Carolina are resolved by keeping a child in a familiar, consistent routine as the judge will try to limit any uprooting or changes that could have a negative impact on the child. For example, if one parent is moving an hour from where the child is in school and where their family and friends are, while the other parent is staying in the neighborhood, the judge is more likely to grant primary physical custody to the parent who is staying local.

Joint Custody and Sole Custody

For decades, most custody cases were settled the same way, with the mother getting primary custody and the father getting every weekend. Today's custody cases factor in fathers' custody rights and are more likely to end with joint custody, which means both parents will receive fairly equal time with their children. Joint child custody schedules can be complicated, but the goal is to ensure both parents have an equal role in their child's life if it's determined to be in their best interest.

In cases where it's not possible, due to location and proximity, work schedules, and other factors, a judge will grant sole custody to one parent but create a visitation schedule for the non-custodial parent. Again this will be determined based on the factors listed above. If a parent doesn't live in a safe area, supervised visits may be required. If an infant is still nursing, the judge may rule that visits are limited to a certain amount of time away from the mother.

Holidays and Vacations

In addition to the everyday custody arrangement, a judge will also have to determine holiday arrangements and vacations. Again, the goal is to promote the best interests of the child, so, for some families, this means dividing the holiday, and other families, the period out of school is divided.

Looking at Christmas custody schedules, parents who live near one another and have families nearby, the judge may divide the day - Christmas Eve and Christmas Day until noon, then the other parent picks up the child to celebrate the rest of the day and day after. On the other hand, if parents live further apart, the judge may determine even numbered years, the majority of Christmas break is spent with one parent then odd numbered years is spent with the other.

Preparing for a Favorable Custody Hearing

If you want to show the judge that you can provide the best interests of your child, it's important to prepare for your child custody hearing. This can include things like showing you are the parent who can provide a more stable home situation or factors such as:

  • Familiarity and knowledge of any health and medical concerns;
  • Participation in extracurricular activities and your child's education;
  • Staying in the family home or living in your child's school district to minimize disruption;
  • Creating a safe, nurturing home environment for your child;
  • Willingness to create a healthy co-parenting relationship with your ex-spouse.

Showing the judge that you truly have your child's best interests at heart can help you get a favorable outcome in your custody hearing.

Schedule a Consultation with Our Child Custody Attorneys in Raleigh

To help you better prepare for your custody case, it's important to have an experienced attorney on your side who can help you understand exactly what the judge looks for and how to best prepare. Schedule a consultation today by calling (919) 301-8843 or by completing the form below.

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