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Halle Berry, Gabriel Aubry, and the "Best Interests of the Child" Standard

Posted by attorney Andrew Zashin

Couples break up all the time. While often the breakup means simply going in separate directions, when a child is involved the court system most often becomes involved. Issues related to child rearing are difficult for intact partnerships - everything from what school the children will attend, to what religion, if any, they will be raised in, to what they should be fed for dinner, are regularly discussed, dissected, and, hopefully, resolved. But resolution most often becomes infinitely more difficult after a breakup or divorce.

In courts throughout the country, judges make decisions about what will happen to the child based on the "best interests of the child" standard. This concept has been in the national news recently in regard to actress Halle Berry and her former boyfriend Gabriel Aubry.

Within the past few weeks, tabloids and celebrity gossip columns have rushed to report on the trouble brewing between Berry and Aubry in regard to their nearly three year old daughter Nahla. Berry and Aubry broke up in early 2010. As of November they had worked out an informal joint custody arrangement and had maintained, to all outward appearances, an amicable relationship. But then Aubry was spotted out at a Los Angeles Lakers game with reality television star Kim Kardashian, and was reported to be romantically involved with her. Sources differ as to Berry's response. Rumors flew, with some sources reporting she was hurt and jealous, and other sources reporting that she had no interest in her ex's dating habits but was merely angry because she did not want her daughter to be exposed to the paparazzi that regularly follows Kardashian.

The relation between these events is murky, but at about the same time Aubry filed a paternity suit in the Los Angeles County Superior Court seeking a formal custody and visitation decision. Then the accusations began. For her part, Berry has described her ex-boyfriend as an unfit father who has made racial slurs against her and has terrified their daughter. For his part, Aubry has claimed to have evidence that Berry is "crass" and "vulgar." The fight has gotten so contentious that Berry turned down a lead role in the upcoming film New Year's Eve because Aubry refused to allow Nahla to travel with Berry to New York City for filming.

Berry subsequently accepted a lesser role, also to be filmed in New York. Still facing the same dispute over Nahla's travel, Berry appeared for her first court hearing on February 16, 2011. The court reportedly permitted the travel, but required Berry to allow Aubry visitation in New York.

In Nahla's case, the court no doubt recognized that Berry's work requires travel, and determined it was preferable for Nahla to be with her mother in New York City, rather than in Los Angeles being cared for by a nanny. In providing for visitation in New York, though, the court no doubt also determined that Nahla was not truly "terrified" by her father and found that she would benefit from having both parents involved in her life.

In reaching its decision, the Los Angeles Superior Court's analysis was nearly identical to that used in courts throughout the country in far less famous cases. Were Nahla's case decided in Ohio, for example, the judge or magistrate would have been required to consider each of the following factors:

  • The parents' wishes as to the child's care;
  • The child's wishes, if he is old enough and mature enough to communicate them;
  • The child's interaction and interrelationship with his parents, siblings, and any other individuals who may significantly affect his best interest;
  • The child's adjustment to his home, school, and community;
  • The mental and physical health of all persons involved in the situation;
  • The parent more likely to honor and facilitate court-approved parenting time rights or visitation and companionship rights;
  • Whether either parent has failed to make all child support payments due;
  • Whether either parent or anyone else in that parent's household had been convicted of or pled guilty to any criminal offense surrounding child abuse or neglect;
  • Whether either parent has willfully and continuously denied the other parent court-ordered parenting time; and
  • Whether either parent has established a residence, or is planning to establish a residence, outside the state.

Most couples do not have the same resources as Berry and Aubry, and the exercise of visitation across the country is not likely practical in most cases. Yet those less famous regularly face similar issues, and the attorneys at Zashin & Rich Co., LPA counsel clients through disputes just like these on a daily basis. If you must travel for an extended period, can you bring your child with you even if it interferes with your former partner's visitation time? Can you move out of the county, or even the state or country? What if your former partner plans to move and take your child?

In all of these situations, as in Nahla's case, the court will consider each question in light of how it will impact the life and well-being of the child. Berry and Aubry, and all parents faced with similar issues, must, with guidance from their attorney, work to show the court why their wishes regarding travel, moving, or any other parenting decisions are in the child's best interests. And, ultimately, only the parents' specific circumstances, considered in light of the child, will determine the resolution of any dispute.

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