Whenever a family law case involves children, the court must consider the “best interest of the child.” This consideration is one of the foundational concepts in family law, yet it is not always a simple test because every child is different, and the circumstances surrounding every child is different.

 

To provide guidance on how to fairly decide what is in the best interest of a child, the courts have outlined factors (frequently referred to as “the Holley factors”) to consider, including:

(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.

Not every one of these factors will apply in every case. For example, if the child is an infant, it would be difficult, if not impossible, to determine what the child desires. Additionally, there could be other relevant factors not included on this list, depending on the facts of each case. If the child has siblings (whether full, step, or half), the impact of separating the siblings should likely be a consideration when crafting a possession order.

 

Certain provisions of the Texas Family Code are presumed to be in the best interest of the child, including the appointment of the child’s parents as joint managing conservators, granting one parent a standard possession order, and ordering one parent to pay guideline child support. A presumption serves as the starting point for answering the best-interest question, but it not necessarily the ending point. If the presumption can be rebutted based on the specific facts of a case, then the court may render orders that deviate from the standard provisions outlined in the Texas Family Code. For example, if there’s a history or pattern of family violence, then appointing both parents as joint managing conservators would likely not be in the child’s best interest.

 

When presenting cases involving the question of best interest of the child, it is imperative that everyone—including the parties, the attorneys, and the court—remember that the focus should always be on the child. The question is not what is in the best interest of the parents or the grandparents, but what is in the best interest of the child. Often, the parties get distracted and testify about things their ex may have done or failed to do. Unless this testimony shows how the ex’s actions impacted the child, the testimony cannot help the trial court answer the question of what is in the best interest of the child. In some cases, it can be helpful to get a third-party, such as an amicus attorney or a child-custody evaluator, to help figure out the facts that the court truly needs to know to reach a final decision.

 

For more guidance on your specific case, contact us for a consultation.