North Carolina law, like the law in just about every other state, requires a judge to “award the custody of such child to such person, agency, organization or institution as will best promote the interest and welfare of the child.” N.C.G.S. § 50-13.2. The statute lists several factors that a judge must consider when determining what a child’s “best interests” are, but parents involved in custody litigation still often misunderstand what this means. Many parents seem to think that they should get custody because they disapprove of the other parent’s home or significant other, because they believe that they get along better with the child, or because they are the same gender as the child.
While a judge may take some of these issues into consideration when deciding a child’s “best interests,” one parent’s feelings about these issues does not mean that the parent having custody is best for the child. Rather, the judge will consider objective evidence demonstrating that custody with one parent is best for a child. So, for example, if one parent has a significant other with a documented history of convictions for domestic violence or serious substance abuse, then the judge will consider whether allowing the child to be around that person is in the child’s best interests. Thus, it is generally better to provide objective or documentary evidence regarding whether one home or the other is in a child’s best interests.
Similarly, judges will often be receptive to evidence about how a child responds to a particular environment or influence. Evidence such as report cards or participation in extracurricular activities can be used to show how well a child is thriving in a parent’s home. If a child is struggling in school, that can demonstrate that the child’s home life is not best for them. In particularly serious cases, a child may attend counseling or therapy sessions, which can indicate what is in their best interests. It is important to keep in mind, however, that the mere fact that a child is getting bad grades or seeing a therapist does not mean that whichever parent has primary custody is “bad” for that child; the truth may be that the child is struggling to cope with problems from another source and that parent is treating the situation appropriately.
As with all legal questions, you should seek the advice of a qualified attorney when considering how to prove what is in your child’s best interest.