best interest of the child

Best interest of the child – this is the standard used by North Carolina family court judges when making a child custody determination. What does best interest of the child mean in a child custody case? We often try to explain the best interest of the child standard to potential clients and since it is often misunderstood, we thought it would be a good topic to write about.

In this blog, we will talk about the factors that a family law judge considers when listening to evidence during a child custody trial.  This blog is intended for informational purposes only and is not intended as a substitute for the advice and counsel of a family law attorney.  Child custody cases are extremely important and have very serious consequences, so you should get expert advice early in the process.

Best interest of the child and the “Tender Years Doctrine” of the past

For many years, NC courts followed the tender years doctrine, which meant that it presumed that when all else is equal, the mother should be awarded custody when the child was young.  Young was typically defined as 4 years old and younger. Though this has not been the practice in North Carolina in quite some time, mothers often incorrectly assume that they are going to have some sort of advantage when it comes to custody just because they are the mother. A judge may be inclined to consider which parent has been the primary caregiver to the child, but the judge cannot presume that the mother is a better choice of caregiver than the father, simply because she is the child’s mother.

Best interest of the child – don’t overthink it

In a child custody trial, both parents will have the opportunity to tell their story by providing testimony and other evidence.  Both parties also will have a chance to ask the other party questions during cross examination.   This is all in an attempt to the paint a picture of how custody should be decided and what exactly the child custody order should address.

Clients often ask “what will the judge be focusing on?”, and the answer is that they consider just about everything including but not limited to:

  • The criminal records of both parents
  • Where both parents live, including their living accommodations
  • The support system and family of both parents
  • The past behavior of both parents
  • The health of both parents
  • The substance abuse of both parents
  • The people living in the households of both parents
  • The current relationship the child has with both parents

Unless there are some clear rules of evidence that would prohibit the judge from consider a fact or if the fact wasn’t presented in the case, the judge can and will consider everything they can.

Best interest of the child – Not best interest of the parents

It is important to keep in mind that this analysis does not focus on what is most convenient for the parents.  Also, the desire of the parents will only be considered to the extent of what is best for the child.  This is a “best interest of the child” analysis not a “best interest of the parents” analysis.

Best interest of the child – the current standard

In child custody cases, judges are typically considering the best interest of the child, not only as it applies to the child’s immediate future, but also long term.  This picture may not look like the same picture that the parents envisioned in their heads.  Often, if both parents are seeking as much time with the child as possible, and there are not underlying issues or causes for concern, both parents will get close to equal custody.

Do children have a say?

If the child is deemed sufficiently competent, he may be permitted[MA1] to offer an opinion via testimony. The family law judge may then consider the child’s wishes, along with the other factors. This does NOT mean that the child will get to decide legal or physical custody – it merely means that the judge may consider the child’s opinion if that child is of sufficient maturity. In North Carolina, there is no set age at which a child is deemed competent and capable of forming such an opinion. A family court judge will make a case-specific determination as to whether to allow the opinion and how much weight to give it.

If you are in need of an attorney for a child custody matter in Charlotte or the surrounding areas, contact us.


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