The "Real" Best Interest Factors
- by Eric C. Nelson, Attorney
Decades ago, custody and parenting time decisions were often made without sufficient factual findings to support the courts' orders — or at least, findings insufficient to allow the Court of Appeals to review the validity of lower courts' orders. As a result, the so-called “best interest factors” were invented, to provide guidance to the Court in making intelligent custody and parenting time determinations. Findings on these factors became mandatory. As a result, nowadays any custody and parenting time order in a contested case will be accompanied by findings of fact on the statutory best-interest factors. And any custody and parenting time evaluation and report will be structured around these best-interest factors. It’s required by law. My commentary on the official best-interest factors is available elsewhere. The focus of this article is on what I like to call “real” best interest factors.
The reality is that in the vast majority of contested cases, the Court must choose between two competent parents. While there are obvious cases of unfitness of a parent, these seldom go very far. In most contested cases, what you see are two reasonably qualified, loving parents arguing that the other parent is either unfit or at least substantially less fit. Often times people really stretch to try to make that case.
The statutory best interest factors are broadly written in a way that permits any relevant fact to be discussed under the heading of one or more “factors.” I do not believe that judges and custody evaluators are really led by the best-interest factors. I believe they consider the obviously relevant facts, and then discuss them under the best interest factor headings so as to comply with the statutory requirements. In most cases, most factors are either irrelevant or neutral. Writing about them becomes a tedious process of justifying a decision you’ve already made based on relevant evidence.
Over many years, therefore, I’ve come up with my own hitherto unwritten list of what I consider to be the simplified “real” best interest factors. These can fit within the broadly-defined statutory topics, but are more useful in practice:
#1) What are the parents’ work schedules?
I consider this to be, by far, the most important, most overlooked “real” best interest factor. It is a question I always ask at the beginning of a new case, because it is so important. The reason should be obvious: you can’t care for a child when you’re at work. Notice that this question doesn’t depend upon the credibility of the parties. It’s pretty hard to argue that your work schedule is anything other than what it actually is. Yet I am astounded at how often people think that common sense doesn’t apply when you enter the court system. No amount of legal wizardry will change your work schedule. If you must be off for work when the child should be in bed, don’t count on having the child for an overnight at that time unless you have a live-in child care provider; and even then, courts usually prefer a parent over a third party child care provider. So if you have a live-in grandparent or new spouse who gets the kids to school in the morning on your parenting time days, because you have to be to work super early, that’s one thing. But if you must get the kids up at 5:15am in the morning to drive them to a childcare provider’s before school, that is not something the court would favor. Likewise, if you travel for work more than a few overnights per month, that will narrow the range of parenting time options for you the more you’re gone.
#2) Where Do the Parents Live?
This is the second most important “real” best interest factor. Like #1, this is not a matter of dispute. Your address is your address. Sometimes a person will tell me they want a 50-50 parenting time schedule, but the child lives in Minnesota and they live in California. If the child is of school age, that will never happen, because the child must be in one state or the other to attend school, and the school calendar won’t allow the child to be gone for half of the days of the year. If the child is not yet of school age, a 50-50 schedule still wouldn’t happen — absent agreement of the parties — because courts do not consider 50-50 schedules to be appropriate for preschoolers.
If you live more than about 30 minutes away from the other parent or from the child’s school, then options for parenting time start to become more limited. Courts don’t expect children to take long car rides on a regular basis just because their parents live far apart. A court isn’t going to expect a child to ride in a car for one hour to get to the other parent’s house for a two-hour mid-week parenting time visit, and then another hour riding back. A court isn’t going to expect a child to have to commute to school on a regular basis for very much more than 30 to 45 minutes one-way.
If you live within driving distance from the other parent, but that distance is more than a few hours, parenting time frequency will be more limited. One of you will have the child’s primary residence, and the other one will have something along the lines of every-other-weekend, but maximizing days off from school, and having more time during summer breaks.
#3) Child’s Preference.
This is one of the statutory factors, but is very important, particularly for teenagers. It starts to matter a lot as of about age 10. It is never the child’s decision to make, but the child’s preference is always very compelling evidence.
#4) Level of Parenting Involvement.
In most cases, both parents do a substantial amount of the parenting tasks and nurturing, although their roles may be different. This point often gets argued, though, because it’s easy to argue that you do more parenting than the other parent does. If this is really lopsided, then the parent who does more things both for the children and with the children will be more likely to end up with the primary residence of a child after a custody determination.
#5) Serious Mental Illness of a Parent.
Run-of-the-mill anxiety or depression doesn’t matter. But if a parent is suicidal, repeatedly hospitalized for mental illness, or in some way harms the child as a result of mental illness, either directly or through illness-related neglect, then it matters a lot.
#6) Serious Chemical Dependency of a Parent.
Occasional marijuana use, or a years-old DUI, is not going to disqualify a parent from custody or parenting time. Smoking pot around the kids, driving drunk with the kids, getting drunk around the kids, or using methamphetamines, cocaine, or non-prescription opioids during your parenting time is very serious, and may result in supervision of parenting time. (Not to make light of a serious issue, here is a very funny video that relates to this topic).
#7) Who’s the Jerk?
Don’t be a jerk. It never plays well. It hurts your case. A big part of representing someone in family court involves making you look like a good guy. Don't make it harder than it needs to be. Being a jerk counts against you with judges, evaluators, and guardians. No court will ever make a finding of fact that “Petitioner is a big jerk,” — not in so many words — but they think about it when making decisions. What you perceive as the expression of righteous indignation at the injustice and cruelty of the other parent will be seen by the court as you acting like a big jerk. One local judge once famously said: “If I can figure out who the a**hole is, I can settle the case.” Here’s a non-exclusive list of the tell-tale signs of a jerk:
Sometimes both parents are jerks, which cancels out this factor.
The reality is that in the vast majority of contested cases, the Court must choose between two competent parents. While there are obvious cases of unfitness of a parent, these seldom go very far. In most contested cases, what you see are two reasonably qualified, loving parents arguing that the other parent is either unfit or at least substantially less fit. Often times people really stretch to try to make that case.
The statutory best interest factors are broadly written in a way that permits any relevant fact to be discussed under the heading of one or more “factors.” I do not believe that judges and custody evaluators are really led by the best-interest factors. I believe they consider the obviously relevant facts, and then discuss them under the best interest factor headings so as to comply with the statutory requirements. In most cases, most factors are either irrelevant or neutral. Writing about them becomes a tedious process of justifying a decision you’ve already made based on relevant evidence.
Over many years, therefore, I’ve come up with my own hitherto unwritten list of what I consider to be the simplified “real” best interest factors. These can fit within the broadly-defined statutory topics, but are more useful in practice:
#1) What are the parents’ work schedules?
I consider this to be, by far, the most important, most overlooked “real” best interest factor. It is a question I always ask at the beginning of a new case, because it is so important. The reason should be obvious: you can’t care for a child when you’re at work. Notice that this question doesn’t depend upon the credibility of the parties. It’s pretty hard to argue that your work schedule is anything other than what it actually is. Yet I am astounded at how often people think that common sense doesn’t apply when you enter the court system. No amount of legal wizardry will change your work schedule. If you must be off for work when the child should be in bed, don’t count on having the child for an overnight at that time unless you have a live-in child care provider; and even then, courts usually prefer a parent over a third party child care provider. So if you have a live-in grandparent or new spouse who gets the kids to school in the morning on your parenting time days, because you have to be to work super early, that’s one thing. But if you must get the kids up at 5:15am in the morning to drive them to a childcare provider’s before school, that is not something the court would favor. Likewise, if you travel for work more than a few overnights per month, that will narrow the range of parenting time options for you the more you’re gone.
#2) Where Do the Parents Live?
This is the second most important “real” best interest factor. Like #1, this is not a matter of dispute. Your address is your address. Sometimes a person will tell me they want a 50-50 parenting time schedule, but the child lives in Minnesota and they live in California. If the child is of school age, that will never happen, because the child must be in one state or the other to attend school, and the school calendar won’t allow the child to be gone for half of the days of the year. If the child is not yet of school age, a 50-50 schedule still wouldn’t happen — absent agreement of the parties — because courts do not consider 50-50 schedules to be appropriate for preschoolers.
If you live more than about 30 minutes away from the other parent or from the child’s school, then options for parenting time start to become more limited. Courts don’t expect children to take long car rides on a regular basis just because their parents live far apart. A court isn’t going to expect a child to ride in a car for one hour to get to the other parent’s house for a two-hour mid-week parenting time visit, and then another hour riding back. A court isn’t going to expect a child to have to commute to school on a regular basis for very much more than 30 to 45 minutes one-way.
If you live within driving distance from the other parent, but that distance is more than a few hours, parenting time frequency will be more limited. One of you will have the child’s primary residence, and the other one will have something along the lines of every-other-weekend, but maximizing days off from school, and having more time during summer breaks.
#3) Child’s Preference.
This is one of the statutory factors, but is very important, particularly for teenagers. It starts to matter a lot as of about age 10. It is never the child’s decision to make, but the child’s preference is always very compelling evidence.
#4) Level of Parenting Involvement.
In most cases, both parents do a substantial amount of the parenting tasks and nurturing, although their roles may be different. This point often gets argued, though, because it’s easy to argue that you do more parenting than the other parent does. If this is really lopsided, then the parent who does more things both for the children and with the children will be more likely to end up with the primary residence of a child after a custody determination.
#5) Serious Mental Illness of a Parent.
Run-of-the-mill anxiety or depression doesn’t matter. But if a parent is suicidal, repeatedly hospitalized for mental illness, or in some way harms the child as a result of mental illness, either directly or through illness-related neglect, then it matters a lot.
#6) Serious Chemical Dependency of a Parent.
Occasional marijuana use, or a years-old DUI, is not going to disqualify a parent from custody or parenting time. Smoking pot around the kids, driving drunk with the kids, getting drunk around the kids, or using methamphetamines, cocaine, or non-prescription opioids during your parenting time is very serious, and may result in supervision of parenting time. (Not to make light of a serious issue, here is a very funny video that relates to this topic).
#7) Who’s the Jerk?
Don’t be a jerk. It never plays well. It hurts your case. A big part of representing someone in family court involves making you look like a good guy. Don't make it harder than it needs to be. Being a jerk counts against you with judges, evaluators, and guardians. No court will ever make a finding of fact that “Petitioner is a big jerk,” — not in so many words — but they think about it when making decisions. What you perceive as the expression of righteous indignation at the injustice and cruelty of the other parent will be seen by the court as you acting like a big jerk. One local judge once famously said: “If I can figure out who the a**hole is, I can settle the case.” Here’s a non-exclusive list of the tell-tale signs of a jerk:
- Never write an email or a text message to the other parent without including some explicit or at least implicit criticism.
- Swear a lot and call names.
- Never ask for the agreement of the other party or suggestions from the other party. Instead, always insist upon your own way.
- Never grant a parenting time accommodation to the other parent, no matter how reasonable the request.
- Go out of your way to make an issue out of every aspect of the other parent’s parenting time with the children that you disagree with, including but not limited to: what shows they watch, what they eat for meals, and what they do for activities. Then include all of your text message traffic in a massive exhibit dump to the Court, because the judge will just love reading all that.
- Commit acts of domestic abuse and/or harassment.
Sometimes both parents are jerks, which cancels out this factor.