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Best interests of the child in Texas

Under the Texas Family Code, the red thread running through all the law governing a parent-child relationship with respect to conservatorship (i.e. parental responsibility) and possession (i.e. custody) is the principle that the best interest of the child is “the primary consideration of the court.” The Code, in fact, articulates a statement of public policy that children should have a relationship with parents who have “shown the ability to act in the best interest of the child.”

Certain presumptions, codified in the language of the statute, shed light on the best interest of the child standard. For example, it is presumed that a child’s best interests are not represented if he or she is living with a parent who has exhibited a “history or pattern” of abuse or neglect. It is also presumed that joint custody is in the best interest of the child. However, other than these presumptions, there is little guidance in the Family Code about what factors should be weighed by the court in its determination of whether certain decisions, arrangements, plans and orders are in the best interest of the child.

According to the State Bar of Texas, in 1976 the Texas Supreme Court provided certain factors that are commonly considered by Texas courts today when deciding what constitutes the best interest of the child. In its decision, the high court listed nine factors, which have come to be known as the “Holley factors.” They are: first, the child’s desires; second, the needs of the child, both physical and emotional; third, any present or future danger, physical or emotional, to the child; fourth, the prospective custodian’s parenting abilities; fifth, the availability of programs designed to assist the affected parties; sixth, the plans of prospective custodians; seventh, the stability of the prospective home; eighth, whether the “acts or omissions” of a parent indicate their relationship with the child is not proper; and ninth, whether such acts or omissions are excusable.

Although these factors list a framework for judges, a judge has “almost unbridled discretion” in making decisions affecting the custody of children. While the factors are helpful and perhaps binding in certain circumstances, determining what constitutes the best interest of the child is no easy decision.  

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