All Family Law, All Around the WorldSM

Protecting the Future: What exactly are the “Best Interests of the Child”?

When children are involved in a custody battle between adults, whether it is an initial dispute or a modification action down the line, you’ll often hear the phrase “best interests of the child.” Legally, the custody arrangement standard is based upon this principle.  There are two primary statutes in Georgia that govern this criteria. In Juvenile Court actions, § 15-11-26. Factors considered in determination of best interests of child is applied. Juvenile Court governs issues of child dependency and delinquency, such as when child protective services are needed or a child is considered ungovernable. In Superior Court actions, the statute is § 19-9-3. Custody of child; best interest of child factors; findings of fact; review; retention of jurisdiction; change of address; attorney fees. Superior Court is typically the setting most often seen, hosting divorce, child support, custody, and visitation cases as well as other civil and criminal matters. The list of factors in these statutes direct the Court’s decision in crafting custody arrangements.

The statutes’ factors are largely mirror images. Both include concerns of safety, stability of the home environment, parental involvement, love and bond between the parent and child, work schedules, school location, the child’s unique needs, capacity of the parent to care for the child on their own, and so on. The Judge has discretion to balance the facts under these factors to make its determination. The lists are not exhaustive, but are designed to guide the Court, and the parties themselves, to focus their attention and therefore their argument on what is best for the children, rather than getting lost in an unfocused fight against each other. The focus for a Judge will always be the children involved. In the courtroom, if that priority is not shared by one of the parties, it becomes painfully apparent.

When there is an argument about the best interests of a child or children, particularly children of young ages, a Guardian ad Litem (or “GAL”) may be appointed by motion of a party or order of the Court. A GAL is tasked with investigating and evaluating the best interest outcome. A GAL is NOT an attorney for the child or meant to represent what the child wants. Rather, they are meant to be an impartial actor solely focused on the child’s best interests (as assessed by the GAL) based on the statutory criteria. A GAL’s report and recommendations are given a heavy weight by the Court due to their role, and their intentional involvement should be a carefully thought out.  They could be strategic addition to any case.

Children represent the future of a relationship, whether that be between married parties or not. Their future requires a delicate hand to set the foundation for them to live their own, independent lives. To do so, creating a strategy from the very beginning of a case is essential to assess and address the Court’s statutory priorities. To set your children up for success is to do so for yourself.