The best interests of the child are established by evidence, not accusations
When a disagreement between parents becomes a custody dispute, each party may believe that the primary task is to prove that they are the better parent, or to prove that the other party has committed mistakes making them unworthy of custody.
Legally, however, the matter is deeper than that.
The court does not view custody as a prize awarded to one parent. Rather, it views it as a responsibility concerning a child, requiring the determination of the environment that provides the greatest possible degree of care, stability, protection, education, and medical treatment.
Accordingly, the question with which a custody file should begin is not:
Which party is better?
Rather:
Where will the child’s best interests be achieved, and what evidence proves that?
First: Custody is not merely the child’s residence with one parent.
The Saudi Personal Status Law defines custody as protecting a person who cannot independently protect themselves from harm, raising them, and attending to their interests. The Law expressly includes education and medical treatment among those interests.
This definition is highly significant because it clarifies that custody does not stop at determining where the child sleeps or with whom the child lives.
Rather, it extends to an integrated system of care encompassing the child’s health, education, upbringing, and social stability.
This highlights the importance of documents that some parties may consider secondary, such as:
School records and the child’s level of regular attendance.
Medical reports and follow-up of the child’s health condition.
Evidence of regular daily care for the child.
The actual circumstances of the child’s residence.
Documents concerning the follow-up of the child’s affairs before official authorities.
Any objective evidence showing the degree of stability in the child’s life.
In some cases, such evidence may be more important than lengthy pages of mutual accusations.
Second: The statutory order of custody does not eliminate the court’s authority.
The Personal Status Law establishes an order of persons entitled to custody when the parents separate, providing that custody is ordinarily awarded to the mother, then the father, then the maternal grandmother, and then the paternal grandmother.
At the same time, the Law establishes an especially important rule:
The court may decide otherwise based on the best interests of the child.
This is one of the most important points in custody disputes.
The statutory order is important, but it is not a rule separate from the child’s circumstances. The best interests of the child remain a criterion capable of affecting the outcome when facts and evidence supporting that result are established.
Therefore, building a custody claim solely on the statement, “I have priority under the Law,” may not be sufficient in an actual dispute.
The stronger approach is to move to the following question:
What makes custody by this party more conducive to the child’s best interests under the specific circumstances of this case?
Third: The custodian’s eligibility is one matter, and the child’s best interests are another.
The Law requires the custodian to have full legal capacity, the ability to raise, protect, and care for the child, and freedom from serious communicable diseases.
However, satisfying the basic requirements does not necessarily end the dispute.
Both parents may, in principle, be eligible for custody, while the dispute concerns which environment will provide the child with greater stability.
It is therefore necessary to distinguish between two matters:
A person’s suitability to exercise custody, on the one hand, and the preference for the child’s best interests to be served by residing with that person, on the other.
This distinction fundamentally changes how the case should be prepared.
Fourth: The common mistake—turning a custody case into a trial of the other party.
One of the mistakes that can weaken a custody file is allowing the submission to become a lengthy account of the former marital dispute.
Who was at fault during the marriage?
Who was more responsible for the separation?
Who mistreated the other?
These facts may have value if they have a direct effect on the child or on the ability to care for the child, but they are not the objective in themselves.
The case becomes stronger when every fact is connected to a specific result:
How did this fact affect the child?
Instead of merely stating that the other party is “negligent,” the legal and evidentiary questions are:
What fact proves the negligence?
Did it result in an educational, health, or behavioral impact?
Is there a document, record, or report supporting it?
And is the matter genuinely connected to the child’s best interests?
This is the distance between an allegation and evidence.
Fifth: A strong file creates an integrated picture of the child’s life.
In a strong custody dispute, each document should not be viewed in isolation.
A medical report alone may not decide the case.
A school record alone may not decide it.
Nor may the place of residence alone decide it.
However, when these elements come together, they can present the court with a clear picture of the child’s circumstances.
Accordingly, a custody file may be built around several areas:
Educational stability
Who follows up on the child’s education? Is the child attending regularly or experiencing interruptions? Does the current environment support continuity in the child’s educational path?
Healthcare
Who follows up on treatment and medical appointments? Is there a health condition requiring special care or regular follow-up?
Living stability
Where does the child actually live? Is the environment stable, safe, and suitable for the child’s age and needs?
Daily care
Who actually attends to the child’s affairs, rather than merely claiming custody as a legal matter?
Continuity of life
Would moving the child from the current environment serve a genuine interest, or cause greater educational, health, or social disruption?
In this way, the custody file moves from a collection of conflicting statements to an evidentiary picture that the judge can evaluate.
Sixth: The child’s best interests are not a legal slogan.
The expression “the child’s best interests” is frequently used in custody cases, but it should not remain a general phrase in written submissions.
Legal skill lies in turning the child’s interests into facts capable of proof.
If it is asserted that the child’s remaining with one parent would be more stable, evidence of that stability should be identified.
If it is asserted that moving the child would affect education, the educational impact should be explained.
If the child’s health is an important factor, the medical document demonstrating that fact should be submitted.
If a party relies on their ability to provide care, the file should realistically reflect that ability.
This is where law meets evidence.
Seventh: The Law itself considers the child’s best interests at more than one stage.
The child’s best interests are not considered only when determining who should have custody.
The Law also takes them into account in certain cases involving the loss of custody, including when the custodian moves to a place with the intention of residing there if the move would compromise the child’s best interests. It also allows a person whose custody right has been lost to request custody again if the reason for the loss ceases to exist.
When the child reaches fifteen years of age, the Law grants the child the right to choose to reside with either parent, but preserves an important exception: unless the child’s best interests require otherwise.
This demonstrates that the child’s best interests are not a marginal exception in the custody system, but a criterion present in several of its provisions.
Eighth: Custody is a practical responsibility, not a formal status.
The Implementing Regulations of the Personal Status Law reinforced this concept by providing that the custodian is responsible for attending to the child’s interests, including following up on the child’s affairs with public and private entities, completing the necessary procedures, accessing applications and digital platforms relating to the child, and retaining the necessary documents and records.
This reflects the practical nature of custody:
The custodian is not merely the person with whom the child resides, but the person who actually manages the child’s daily affairs and essential interests.
Before filing a custody case: ask about the evidence
Before drafting the statement of claim or written submission, it may be useful to ask several questions:
What fact do I want to prove?
How is this fact connected to the child’s best interests?
What document proves it?
Was the document issued by an independent authority, or is it merely a statement made by one of the parties?
Is there other evidence supporting it?
What would remain of the case if the parents’ personal disagreements were excluded?
If what remains is a coherent file concerning the child’s education, health, care, stability, and actual circumstances, the case will have moved closer to the question that truly matters to the court.
From law to application.
In one case analyzed through Counselo in cooperation with the client’s legal representative, and published in our work, the dispute concerned the custody of a child.
Rather than building the file on personal confrontation between the parents, the focus was placed on previous judgments, educational and medical documents, and facts relating to the child’s actual stability, after which these elements were linked to the statutory criterion concerning the child’s best interests.
The case concluded with a final judgment awarding custody to the father.
We addressed the working method in this case separately in the Case Studies section, with all names and data capable of revealing the parties’ identities withheld.
Counselo’s perspective:
In custody cases, the dispute may begin between the father and mother, but it should not remain there.
Once the file reaches court, the true focus becomes the child themselves.
What environment protects the child?
Who can actually care for the child?
Where will the child’s education and treatment remain stable?
And what do the documents prove, apart from the parties’ allegations?
Therefore, a strong case does not merely say:
“Custody is my right.”
Rather, it provides the court with an evidence-supported answer to the more important question:
Why does this custody arrangement serve the child’s best interests?
Counselo | كاونسلو
Legal Analysis. Strategy. Results.
This article is provided for general legal awareness purposes and is not a substitute for an independent assessment of the circumstances and documents of each case.