Best Interest of the Child

In a family law case involving a child, you will often hear someone say the Court has to determine “what is in the best interest of the child.” What that means for a parent and for the Court, however, can be completely different. Texas law states that the Court must use the “best interest of the child” standard when making a ruling about conservatorship, possession or visitation and child support.

There are several deeply rooted policies that are laid out in the Texas Family Code. These policies require the Judge to ensure that a child has frequent and continuing contact with a parent, that both parents share rights and duties related to a child, and that a child has a safe and stable home free from abuse, neglect or violence. The Court keeps these goals in the back of their mind – ultimately trying to make a ruling that promotes these policies.

How Does the Court Determine What It Should Do in Family Law Cases Involving Children?

When parties ask the Court to make a decision about conservatorship, possession or visitation, or child support, the Court looks to what the law says they should do. We call these “presumptions.” There are several presumptions created by the law, like:

• Parents should be named Joint Managing Conservators
• If the non-primary parent lives within 50 miles from the child, that parent should have an Expanded Standard Possession Order
• Child support shall follow the standard guidelines

In order for the Court to override these presumptions, it must be in the best interest of the child.

What is "The Best Interest of the Child?"

So what is in the best interest of the child?  First, it depends on who is asking the question. What is in one child’s best interest may not be in the best interest of another. There is not a cookie-cutter definition on what the “best interest of a child” is. Why? Because every family unit is different and the facts that surround one family may be different from another. We do, however, have guidance from the Court on what factors the Judge may consider when determining what is in a child’s best interest.

The Court can consider any relevant fact to determine what is in a child’s best interest. Texas Family Lawyers look for guidance from the “Holley Factors” to determine what facts are relevant to the Court. The Holley Factors come from a 1976 case, Holley v. Adams. This list is not exhaustive by any means. One thing is for certain – we know the Holley factors will be at the center of the Court’s mind when making a ruling.

These factors are:

1. The desires of the child;
2. The emotional and physical needs of the child now and in the future;
3. The emotional and physical danger to the child now and in the future;
4. The parental abilities of the individuals seeking custody;
5. The programs available to assist these individuals to promote the best interest of the child;
6. The plans for the child by these individuals or by the agency seeking custody;
7. The stability of the home or proposed placement;
8. The acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and
9. Any excuse for the acts or omissions of the parent.

How Does a Parent's Wishes Impact the Decision?

If you noticed, a parent’s wishes for their child are nowhere to be found in the factors. That is purposeful. The Court does not look to a parent’s wishes desires for their child. Know that not all divorce cases or custody cases make it in front of a Judge. If a case does reach the Judge, he or she already knows the case is contested and the parents likely cannot get along. The Judge may hear testimony that a parent may want the other parent out of the picture. But the Judge knows, he or she cannot do what a parent wants – he or she must do what is in the best interest of the child.

How Does a Child's Wishes Impact the Decision?

A child’s desires are only one factor in a list of many. Just because a child expresses a preference does not automatically lend it to being the decision that is in the best interest of a child.

An example we often see is parents who have different structures for their homes. Parent A’s home may be full of rules and structure, while Parent B’s home is a free for all. A child may express that they wish to live with Parent B, however the Court may have a differing opinion based on the other factors listed above. It can be scary to leave a decision like this to a Judge who does not know you, your family or your situation.

Does the Court Always Have to Make a Decision About the Child?

To give you some relief, a Judge only makes decisions about children when parents cannot agree. More times than not, two parents are able to come together, discuss a resolution (either together or with their attorneys) and make a decision on what they believe is in the best interest of their child.

The law actually encourages parents to work together which is why many Courts require you to attend mediation. The Court wants to see parents working out their disputes as this promotes a co-parenting relationship. Family issues should be handled within the family, but we know that is not always possible with some individuals.

If you have questions about the best interest of the child or what you think a Judge may do in your situation, please give us a call. One of our experienced attorneys can assist you in giving you an assessment on how the law could intersect with your family.