Identify the factors that Texas courts look to for determining the "best interest of the child" in cases involving conservatorship, possession, and access.
If your case involves the Court deciding issues of conservatorship (“custody”), possession, or access, you will hear the term “best interest of the child” repeatedly. You know that is what is supposed to guide the Court in making its decisions, but what does it mean and how will knowing what it means help you?
The public policy of the State of Texas is to assure a child has frequent and continuing contact with parents who have shown the ability to act in the best interest of the child; to provide a safe, stable, and nonviolent environment for the child, and encourage parents to share in the rights and duties of raising their child after they have separated or divorced.
Texas law requires the “best interest of the child” to always be the primary consideration of the Court in determining the issues of conservatorship, possession and access. How are those decisions made? By examining evidence relating to several “best interest factors”. These fall roughly into three separate categories: (1) caring for the child; (2) maintaining family relationships; and (3) parental fitness.
As you work with your attorney to prepare your case, you can use this as a guide to help organize your thoughts and the facts and circumstances that have occurred in the lives of you, the other parent, and the child, so that you can share relevant information with your attorney and together present your best case.
Caring for the Child
The Court will look for evidence on caring for the child as part of the decision-making process. These factors include:
1. Physical and Emotional Needs of the Child – Which party will best provide for the child’s physical, psychological, and emotional needs and development now and in the future?
2. Physical and Emotional Danger to the Child – Does either parent pose a physical or emotional danger to the child now or in the future?
3. Stability of home – What is the stability of the home and home life of each of the parents?
4. Plans for the Child – What are each party’s plans for the child?
5. Cooperation Between Parents – Does each party have the ability to give the child first priority and reach shared decisions in the child’s best interest? Are the party’s able to cooperate and make shared decisions? Does the inability to be civil with each other prevent decision making in the child’s best interest?
6. Parenting Skills – What are the parenting skills of each of the party’s?
7. Primary Caregiver – Who was the primary caregiver of the child before the lawsuit?
Maintaining Family Relationships
The Court also will look for evidence as to how family relationships can best be maintained. These factors include:
1. Child’s Preferences – The court can speak with the child in chambers about the preferences of the child (but the court does not have to follow what the child wants).
2. Geographic Proximity – Where do or will the parties reside in relation to each other? This is important because distance complicates decisions about schools and activities, health care providers, changes in possession, the ability to have a close and frequent relationship with both parents, and others.
3. Siblings – If split conservatorship is requested, what would be the effect on the siblings of separation?
4. Promoting a Healthy Relationship Between the Child and Other Parent – To what extent does each party encourage and accept a positive relationship between the child and the other parent? (Neither should bad-talk the other nor attempt to prevent visitation with the other.)
5. False Report of Child Abuse – Has either party ever knowingly made a false report of child abuse? (If a parent has made a report of child abuse, then even if it is “ruled out”, so long as that parent can provide a reasonable explanation for the allegations of abuse the report is not considered “knowingly” made).
6. International Child Abduction – Is there a risk of the child being abducted and removed from the county?
The Court will look at evidence of parental fitness and consider the following factors:
1. Present Fitness and Recent Past Conduct – This factor is quite broad and may include substance abuse, leaving the child to be cared for by others, criminal conduct, conduct toward the other parent, etc., etc., etc. (if you question whether a certain fact or circumstance by you or the other parent could fit here, the answer is likely “yes”).
2. Drug or Alcohol Abuse – Does either party have a drug or alcohol problem?
3. Sexual Conduct – Does the sexual conduct of either party render that parent unfit? A party’s sexual conduct is only relevant if the child was exposed to it or had access to evidence of the conduct. (i.e., if a party has pornography that is accessible to the children, that is relevant; if it is not accessible, it is not relevant).
Special Considerations for Children Under Age Three
If your child is under three years old you need to be aware of the additional factors of which the Court will want to see evidence so a proper decision can be made. These factors are in addition to the standard “best interest factors” applicable to children of all ages.
Review the following “under three years of age” additional considerations and think about the facts and circumstances of your case so that you can provide relevant information to your attorney in order to present your best possible case.
▪ the caregiving provided to the child before and during the current suit;
▪ the effect on the child that may result from separation from either party;
▪ the availability of the parties as caregivers and the willingness of the parties to personally care for the child;
▪ the physical, medical, behavioral, and developmental needs of the child;
▪ the physical, medical, emotional, economic, and social conditions of the parties;
▪ the impact and influence of individuals, other than the parties, who will be present during periods of possession;
▪ the presence of siblings during periods of possession;
▪ the child's need to develop healthy attachments to both parents;
▪ the child's need for continuity of routine;
▪ the location and proximity of the residences of the parties;
▪ the need for a temporary possession schedule that incrementally shifts to the schedule provided in the prospective order based on:
- the age of the child; or
- minimal or inconsistent contact with the child by a party;
▪ the ability of the parties to share in the responsibilities, rights, and duties of parenting; and
▪ any other evidence of the best interest of the child.
As you see from these special considerations for children under age three, along with the “general” factors for all children, the Court can and will look at all possible information that is relevant to deciding the important issues of conservatorship, possession, and access.
There are various facts which the court cannot consider in making determinations as to conservatorship, possession and access. These prohibited factors include:
1. Marital Status – Whether either party is married is not considered.
2. Gender – The gender of a parent is not relevant.
3. Race – The court cannot consider a party’s race or ethnicity.
4. Religion – A person’s religious beliefs, even if unusual or abnormal, generally cannot be considered. However, if the religious beliefs are illegal, immoral, or harmful by applying community standards, the court can consider those.
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