Best Interests of the Child - Texas Family Code

What Does “Best Interests of the Child” Mean in Texas?

In matters of parental custody, “best interests of the child” [BIC] refers to the overarching concern by the court in regard to conservatorship (other states call it custody), access and possession of a child. When a couple is going through a divorce or separation and cannot come to a mutual agreement regarding allocation of parental rights on their own, a judge will hear arguments from both sides and determine conservatorship and parenting plans based on the best interests of the child’s needs.

The Texas Family Code does not state specific BIC criteria, but several factors can influence this decision, which we’ll discuss shortly. The BIC criteria become critical in high conflict divorce cases (or post-decree modifications) when the parties cannot come to an agreement on custody and visitation, and the Court orders a child custody evaluation in an effort to settle the dispute.

For the purposes of this post, we will assume both the petitioner and the respondent are the parents of the child. It should be noted, though, that nonparents may occasionally also seek parental rights. In these cases, a nonparent must meet the same stringent guidelines as a parent.

The Process of Determining Best Interests of the Child

Factors that go into determining a child’s best interests are not clearly defined in the Texas Family Code. However, some case law suggests that the BIC are determined using three main categories:

• Caring for the child
• Maintaining family relationships
• Parental Fitness

Caring For The Child

Caring for the child involves much more than providing food, clothing and shelter, although this is certainly of paramount importance. The child’s physical and psychological wellbeing as well as parent competencies are the main consideration.

Factors a judge might consider here are:

• Do the petitioner and/or respondent have parenting deficits concerning education, discipline and living arrangements?

• Does either parent indulge or neglect the child or allow them to engage in risky behaviors?

• Does the child have special physical, psychological or emotional needs?

• Has either parent had parental training and good parenting skills?

• Does one parent have a strong family support system, while the other does not?

• Will the child be left with other caregivers? If so, who, how often, and for how long?

• What kinds of people will be around the child? Are new relationships spending the night in violation of Court orders?

• Does either parent pose an emotional or physical threat to the child, either now or in the future?

• How stable is each party’s home?

• Which parent was the primary caregiver before the suit?

• Are the parents able to communicate effectively for the benefit of the child? If not, which parent is promoting better communication?

Maintaining family relationships

Maintaining family relationships, including with extended family, is an important part of any child custody arrangement. Factors that can influence this part of the judgment include:

• Geographic proximity – Will one parent be closer to an extended family support system? Has one parent relocated to a distant city or state?

• Siblings – Siblings are normally kept together if possible, but there are exceptions, particularly with older children.

• False reports of child abuse – False reports of child abuse can lead to restricted visitation or access to the child by the accuser.

• Restriction of visitation – Gatekeeping efforts to deny a parent time with their child are viewed very negatively by the Court.

• International child abduction – The court may consider whether the child is at risk of being abducted by a parent. Factors a judge may consider are who will possess the child’s passport, and whether efforts at visitation restriction or flight within the Unites States have been an issue in the past.

• Ability to encourage a healthy relationship with the other parent – This is a standard phrase in most Court’s standing orders.

The judge may also interview the child in chambers to learn more about their viewpoints on the parents and what he or she believes their own needs are. The judge can use this information to help guide his or her decision regarding parental rights and responsibilities. The child’s preferences do not outweigh other factors that influence his or her wellbeing. It is simply additional information the judge can use to gain further insight into the situation.

Parental Fitness

In Texas, a judge must consider the following factors when determining a parental fitness:

• Present fitness or recent past conduct – Is the parent financially responsible, and willing to take on the responsibilities of caring for the child?

• Drug or alcohol abuse – A judge will consider whether or not either party has a substance abuse problem. Past issues of substance abuse do not automatically mean a person is unfit. It can depend on how long the person has been clean and sober, and whether there were aggravating factors such as drug dealing or violence when under the influence.

• Sexual conduct – What some may consider scandalous sexual behavior does not automatically disqualify a party from having or sharing custody of the child. Sexual conduct is only relevant when the child is exposed to the behavior or has access to evidence of the behavior. For example, if a parent has pornographic material on a computer that is shared with the child, or engages in sexual acts in front of the child, this would be unacceptable.

• Family violence – If a party has been deemed to have inflicted family violence on a child, then joint conservatorship is off the table. Family violence generally has a lower bar than a pattern of pervasive physical abuse or intimate partner violence, which also preclude joint conservatorship.

Prohibited Factors

Under Texas family law, there are several factors that do not come into consideration when determining the best interests of the child. Among them: race, gender, religion, marital status and unusual or abnormal beliefs. The financial condition of a parent, or the comparative financial condition of both parents, is typically not considered when determining parental rights and responsibilities.

Note that there is an exception for immoral, illegal or harmful beliefs. In some cases, one party may argue that religious beliefs fall into this category. In these instances, either the judge or a jury decides what constitutes immoral or harmful behavior to the child by applying community standards. (Note: Texas is the only state that allows for a jury trial in divorce matters. All other states require the judge to decide.)

Common Sense Rules

Both the petitioner and the respondent should strive to achieve an agreement that is is in the BIC when preparing for a child custody case. Separations and divorces are messy, and it is critical that children not get caught in the middle between the parents. When a case cannot be settled and a child custody evaluation is ordered, the BIC factors discussed in this article must be addressed. In short, it’s all about the child.

See Mumma v. Aguirre, 364 S.W.2d 220, 221 (Tex.1963); Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982); Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.1976); Vazquez v. Vazquez, 292 S.W.3d 80, 85 (Tex.App.—Houston [14th Dist.] 2007, no pet.)