What if the child's best interest does not coincide with the parents' personal desires?

When parents split up, a custody arrangement is generally worked out in one of two ways: the parents can agree on child custody without litigation either by simply working together or by getting help from a mediator or collaborative divorce coach; or the parents do not agree on custody and the issue is litigated. If the parents both agree on child custody, the court is usually going to sign off on their custody arrangement unless there is a very compelling reason not to do so. 

Reasons Why Courts Allow Certain Custody Arrangements

Consider a situation in which the father and mother both believe that the mother should have custody of the child. Perhaps the father could provide a better living environment for whatever reason: a more stable home environment, a better history with the child, etc. If the two parents agree on a custody arrangement, the court is not going to refuse to enforce the custody arrangement and insist the child go and live with the father, even if it might technically have been best for the child to do so. It would not make sense for a court to force a parent to take custody when he didn't want it. Instead, the court will comply with the parent's personal desires. 

Reasons Why Courts Deny Certain Custody Arrangements

If there is some danger to the child by accepting what the parents want in a custody arrangement, the court is usually going to take more action to change things even if the parents have already agreed on custody. For example, if both parents think a child should live with his mother, but his mother is heavily addicted to narcotics and unable to care for the child, the court is likely not going to give custody to the mother, even if that is what both parents desire. The court may declare the mother unfit, and the father will then have a choice of taking the child. If he opts not to accept custody, the court will usually try to find another blood relative or the child will be put into the foster care system. 

If, on the other hand, both parents have a personal desire to have custody of the child, then the court will simply make its custody choice based on what is best for the child, regardless of those parent's wishes. For example, if mom and dad both want the child, the court is going to look at the care and home life each can provide and base its decision on those factors rather than on what each parent "wants."

Getting Help

To get help understanding exactly how child custody works and how parental desire factors in, it is a good idea to schedule a consultation with a lawyer in your area.