When determining child custody, Courts must weigh all factors based on what the judge feels is in the “best interest of the minor child.” Often, it can feel ambiguous in knowing how a judge may rule under this standard, but I’ve come to see some common themes emerge in what judges are looking for that could help you approach your own situation.

Here is the definition of the standard:

“‘Best interest of the child’ includes, but is not limited to, the opportunity for maximum continuous physical and emotional contact possible with both parents, unless direct physical or significant emotional harm to the child may result from this contact. Refusal by one parent to provide this opportunity without just cause shall be considered harmful to the best interest of the child.” 

Under this standard, I have found that Courts attempt to encourage both parents to share the rights and responsibilities of raising the child unless there is a showing that one parent is unwilling or unable to do so. While physical inability to care for a child is clear, it’s the emotional ability of a parent that often becomes muddied and more of a ‘shock’ to a parent when reviewing an order from the Court on why they were not afforded the most parenting time.  

To lessen that potential sense of shock, consider these three tips below, which will help demonstrate to the court that you have the emotional ability to care for your child.

1) Blaming the other parent for their wrongdoings or the downfalls of a marriage or relationship can reflect directly on a parent’s emotional harm to a child, which may result in a decrease in their parenting time.

Children often feel safe with a parent who isn’t constantly placing the child in the middle, speaking poorly of the other parent, or spending their limited time with the child to get information on the other parent they can use in court. The emotional harm results from the child often feeling like they are not spending quality time during that parent’s parenting time, feeling that they have to be a spy to the detriment of their other parent, or even that their parent doesn’t care whether they are there or not. The less focus on the other parent and the more focus on the child often results in a settlement that promotes both parents acting in the child’s ‘best interest.’

2) Going as far as showing your child that you and your ex appear as ‘best friends’ even if that is the farthest thing from the truth, can be seen as an award for more parenting time to a judge.

Even if you and your ex know that you cannot get along, you should limit your communication to only communicating about the child, keeping exchanges short and positive. I like to tell my clients that, if your child feels that their parents are best friends, they are more likely to feel better about the process of you and your ex separating. My best tip: type what you really want to say into an AI generator and ask it to rephrase your response to be something positive that you could send to your ex.

3) Keep the child out of the custody proceeding and share only what is necessary.

If you immediately leave a hearing, mediation, or your attorney’s office and share what you learned with your child - that places them directly in the middle of your custody battle. A judge will never find that to be in the best interest of the child, but for extremely limited circumstances.

If your child is confused about why they must go to mom’s house or dad’s house on a Wednesday, this is an opportunity to discuss with your ex how to relay what the court’s order states to the child. Do not show your child the order directly. Judges often put in facts that are unfavorable to one parent or the other in the order. This is not intended to be relayed to the child but is instead to help the courts on appeal or to help a parent understand why they ruled as they did. When discussing an order with the child, it should be limited to only what is necessary for the child to know, such as their visitation schedule.

Bottom Line

Sometimes even parents can get caught in the trap of trying to “prove” to their child that they are not to blame for a family divide or divorce. When this happens, the court is more likely to award more benefits or custody to the other parent, who by staying above the fray and keeping their child out of the drama, demonstrated themselves as the more solid parenting figure.

These are the three biggest tips I can provide when there are two parents who really are good parents but get caught up in trying to ‘prove’ their case or show their child that they are not to blame for the divide that has occurred in the family.  In doing so, you will often lower yourself to your spouse’s level and a court will reward the parent who has continued to keep the child out of the custody battle and be the most solid parenting figure for them throughout the case.