How Are Best Interests of the Child Defined?

In Texas, there are many factors that are considered by the Judge in accordance with the Texas Family Code, determine the “best interests of the child”.  This is the controlling standard in Texas for making Child Custody, Possession, and Support decisions.  Just because a Judge is a Judge, does not mean they can do whatever they want, Judges are required to make their decision based upon the evidence presented and the controlling standard of “the best interest of the child”.  The goal of most Judges and the stated “public policy” of the State of Texas is to provide the greatest stability and the best environment for the child. These “best interest” factors may and usually include:

  1. The relationship the child has with each parent, as well as with siblings and extended family members;
  2. The wishes of the child, if the child is old enough to make his or her desires known. In Texas a child twelve (12) years or older is entitled to demand an “interview” with the Judge in chambers where the child is able to speak for themselves and make their choice for which parent has “primary conservatorship” (the right to determine where the child resides. If the child is under age twelve (12) the child may request the “interview” by the Judge, but the Judge is not required to grant the child younger than 12’s request. The older a child is, the more weight this factor will generally have on a child custody decision. Even if the child is granted an interview with the Judge, the Judge is NOT required to follow the expressed desires of the child;
  3. Any history of abuse or neglect on the part of either parent;
  4. Each parent’s mental and physical health;
  5. The living environment the parent can provide to the child, including the school and local community. If you live in a high crime rate area, or if the local school has a low rating by the Texas Education Agency, then these are factors a Judge can consider in making the decision on which parent should be named the conservator with the right to establish the residence of the child. Lifestyle issues that might interfere with the ability to provide a solid and stable home life for the child are taken into account, including the impact of cohabitation with a new partner, roommate, or other person who has frequent contact with the child. Things such as religion and hours worked may also be considered by the Judge in making the decision of primary custody.
  6. The degree of parental conflict, violence, or cooperation can be a major factor of consideration in the types of rights and duties a parent is awarded by the Judge in making a custody determination. The willingness (or lack thereof) of the parents to cooperate with the other party in child rearing decisions; and to encourage a continued, and “positive” relationship with the other parent for the child, is a significant factor, courts consider in making a custody decision. If a parent is making attempts to “influence” or create “bias” or to “poison the child” against the other parent (sometimes called “parental alienation”), this will reflect poorly on the parent engaging in such conduct and it can seriously impact a Judge’s child custody decision.
  7. The ability of each parent to provide financial support for the child, including any history of missed child support and/or medical support payments or reimbursements is also a factor considered in determining “the best interest of the child”.

These and other factors may be considered by the Judge in order to make a determination of “the best interests of the child,” and consequently where the child should live, or how child possession and access to the child should be divided among the parents.

How to Show it is in the Best Interests of Your Child to Live With You

If you want to get or keep custody of your child, you will have to convince the Judge that it is “in your child’s best interests” to live with you. This is especially true if you wish to obtain “sole custody.” This process will include some or all of the following steps:

You will need to present witnesses that can testify to the judge regarding the above listed factors that are considered when determining custody. Contacting other family members, neighbors, teachers and anyone else who can testify on your behalf is important to making your case and convincing the Judge to decide to give you “primary conservatorship (custody) of your child.

An Amicus attorney or attorney ad litem is also appointed in many custody cases to make a recommendation to the court. The attorney ad litem represents the child in the custody dispute, and has the legal duty to prosecute the expressed wishes of the child, without regard to if those expressed wishes are in the child’s best interests. The role of an Amicus attorney is very different but similar. An Amicus attorney has two legal duties: 1) advise the Court of the expressed wishes of the child; 2) express to the Court what “is in the child’s best interests” with regard to the child’s expressed wishes as to the child’s chosen conservator and the other factors described above.  The Amicus attorney is authorized by Court Order and may observe you and your family members and child to determine what the proper choice for custody is. It is imperative you cooperate with the amicus attorney and provide him or her with the details he or she needs to make an informed choice on what is best for your child.

Alternatively, some courts order evaluation by a therapist or social worker, where the evaluator prepares a written recommendation to the court, called a “Custody Evaluation”. The “Custody Evaluations” can only be done by certain “qualified” professionals who have completed certain levels of education and training and have been “approved” by the Judge to perform “custody evaluations.” The court will very often follow the recommendation of the evaluator.

You also must refrain from any behavior that could adversely impact your right to custody. Do not badmouth the other parent, and do not interfere with the child’s relationship with that parent, as these things will reflect badly on you during a custody dispute.

Be conscious that any evaluator, the jury and the judge, are listening to what you say in order to make a determination as to the best interests of your child. Sometimes what you do not say can significantly impact the Judge’s decision. If you pay too much attention to the amount of child support, or seeking custody your child in order to pay no child support, the judge may interpret this as a lack of concern for your child’s interests and you may very well end up with less time with your child. Although under Texas Law issues of child support and custody are not connected, often an evaluator, judge or jury may confuse your over-attention or fixation of financial matters as indicating that “it’s all about money” with you and that you are not interested in “the child’s best interest.”   Remember that the parent who appears most reasonable, well adjusted, disciplined, and can provide the most safe, stable, and nurturing environment will usually win a custody battle.