Cases Where the Best Interests of the Child Standard May Not Work

GRAND RAPIDS, Michigan. When couples divorce, one of the most contentious issues that parents must resolve is where the children will reside. Many child custody lawyers, like Gordon & Hess, P.L.C. strive to help divorcing couples develop a parenting plan outside of court. Deciding about the fate of the children outside of court, while difficult, can often protect children from decisions made by a judge. When parents take their child custody battles to court, the decision often rests with a judge who may not make a decision that either parent wants. Child custody matters are decided based on the principle of the best interests of the child. The factors determining the best interests of the child can be vague and are often quite subjective.

For instance, some of the best interests of the child considerations under Michigan law include, considerations about the moral fitness of the parents, the existing love and affection shared between the parent and child, and capacity of each parent to provide a stable home. Here, a judge’s decision will, by necessity, be subjective. After all, moral fitness would be based on an individual, family, or judge’s morals, which can differ from person to person. And, how can a judge measure one parents’ love against the other?

For instance, in one recent case reported by Rights Info, a high court judged ruled that contact with a transgender parent would not be in the best interests of the child. The children’s’ mother was part of an Orthodox community and the children’s biological father was undergoing transition. The case brings into conflicts children’s rights, human rights of the father, and the best interests standard. The children did not want ongoing contact with their father out of fear of rejection from their community. The mother did not want the children to have ongoing contact with the father. The judge ruled that it would not be in the children’s best interests to have ongoing contact with their father, a decision that has transgender rights activists and human rights activists concerned.

Even when judges make decisions that make both parents and children happy, the courts sometimes fail to consider that families are subject to ever-changing dynamics. According to one writer for the New York Times, a sound decision that is in the best interests of a five year old may not be in the best interests of a 15 year old, ten years later. Priorities and needs change. While parenting plans should address these needs and address how changes should be addressed, according to the New York Times, many parents are wary to change a parenting plan in court once one has been established, and children may ultimately put aside their own needs out of fear of pitting one parent against the other in court for a second round of litigation. Some experts argue that parenting plans should be subject to regular review. Others suggest that parents develop plans that are sufficiently flexible to consider a child’s changing needs. Gordon & Hess, P.L.C. are family lawyers in Grand Rapids, Michigan who can help parents develop plans that are both enduring and flexible.


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