Texas Custody and Best Interest of the Child

Posted by David Armstrong | Feb 22, 2022 | 0 Comments

Texas Custody and Best Interest of the Child

            If, heaven forbid, you end up in a custody battle over your child/children, you will no doubt have a discussion of why it is best for you (and not the other parent) to be primary caretaker of the child.   That should be done before starting a case, and should be reviewed often as the litigation is ongoing.  But what is best for the child?  What is ‘best interest?'     

            According to the Texas Family Code, Best Interest is not just a part of the case, but is THE guiding force in determining issues about the child's conservatorship and possession and access to the child.   (see  Tex. Fam. Code Section 153.002: “The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.”)  

            But if you look through the Texas Family Code to determine what exactly is the best interest of a child, you won't find a definition.   Instead, most attorneys (and judges) look to the case law to decide, and specifically the following list of factors, oddly enough from a case about termination of parental rights, not custody.    [See Holley v. Adams, 54 S.W.2d 367 (Tex. 1976)].

(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 that 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.

            Follow that list in your factual presentation at court, and you will likely do well.  

            Additionally, I would further suggest that you read Texas Family Code Section 153.001—the statute just before the ‘best interest' statute noted above.    There we discover that “the public policy of the state is to…..

                        “Assure that children have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child, AND

                        “Provide a save stable and non-violent environment for the child, AND

                        “Encourage parents to share in the rights and duties of raising their child.

More important than dirt on the other parent is BEING the parent who is most able to work with the other parent for the child's benefit.   That often has a better appeal to the judge.   I believe that is shown in the statute above, most clearly—act in the child's interest, provide a stable environment, and share in raising the child.   That's what the judge's eventual order is supposed to do.   If you show you are already doing that, you give the judge the road map to appoint you in the position to continue doing so. 

About the Author

David Armstrong

J.D. University of Houston, 1995


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