Best interest factors are critical in a Court’s decision as to the placement and care of a child. The Texas Family Code states, “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” (Tex.Fam.Code § 153.002). Below is an explanation of the Best Interest Standards upheld by Voices for Children.
HOW ARE BEST INTEREST FACTORS DETERMINED?
Often informally decided by a Judge, citing the most relevant facts of the case to create a standard.
Who advocates for the Best Interest of the Child?
Attorneys for the mother/father act in the best legal interest of their client. As is too frequently the case, what a parent wants is not always what is in the best interest of the child.
A judge is required to rule in the child’s best interest, not advocate in favor of it. If the parties in the case fail to communicate to the Court a child’s best interest, then the Judge will likely have no means, and, further, no mandate to rule on Best Interest Factors that were not made available to them.
The child’s attorney ad-litem does not advocate for the child’s best interest, but rather the child’s best legal interest, which can be, and often is, altogether different. An attorney ad-litem’s function is to provide legal counsel and communicate a child’s wishes to the court, acting in what they believe to be legally in the best interest of the child. They are not, however, mandated to consider the child’s overall best interest, often leading to some confusion for parties to the case.
The role of Guardian ad Litem, a position filled by volunteers in CPS cases, otherwise known as CASA’s (Court Appointed Special Advocates) is to speak to the best interest of the child(ren) involved. Best interest is determined by exhausting all efforts to gather information about the child and family, monitoring the CPS case and facilitating communication between parties. The determination of best interest recommendations to the court is based on Best Interest Factors outlined by the Texas Supreme Court in Holley v. Adams, 544 S.W.2d 367.
What are some common Best Interest Factors?
Per Holley V. Adams, the following are frequently considered best interest factors:
- the desires of the child
- the emotional and physical needs of the child now and in the future
- the emotional and physical danger (of one parent) to the child now and in the future
- the parental abilities of the individuals seeking custody
- the programs available to assist the parents
- the plans for the child by these individuals
- the stability of both parties’ homes and any acts or omissions of a parent which may indicate that the existing parent-child relationship is not a proper one
- any excuse for the acts or omissions of a parent.
Age, too, is often considered in determining the best interest of the child. The American Bar Association lists the following age-sensitive questions as relevant to determining the best interest of the child.
Infant (birth to 18 months)
- How can the parent respond to the child’s needs in eating, sleeping, and bathing?
- Is the parent aware of things that could endanger an infant?
- Has the parent shown capability in supplying basic needs?
- How is a parent’s physical and psychological health?
- Does a parent have a substance abuse issue or medical problem? If so, has the issue been addressed?
Toddler (18 months to 5 years)
- What kinds of learning opportunities does the parent create for the child to master both physical and mental tasks, including language development?
- If the parent is working, are day care arrangements carefully selected and monitored to ensure that a safe and stimulating environment is provided for the child?
- Does the parent provide sufficient opportunities for the child to socialize with other children and supervise these activities in order to ensure safety?
- Does the parent set expectations and rules that promote self-control and safety?
- How does each parent support the child’s relationship with the other parent?
Early Elementary School-Aged Child (5 to 7 years)
- How is the parent involved in the child’s community, school, and religious activities?
- Does the parent provide the child with time and a place to do homework, as well as provide assistance when needed?
- Does the parent communicate with teachers, coaches, and leaders?
- How does the parent handle academic difficulties that may require assessment, intervention, financial resources, and individual help?
- Knowing a child of this age experiences loyalty conflicts, does the parent assure the child of a loving relationship with the other parent?
Older Elementary School-Aged Child (8 to 10 years)
- How does the parent encourage the child’s need for productivity and self-reliance by supporting and facilitating involvement in activities?
- Does the parent seem to recognize the importance of peer friendships and foster these relationships?
- Is the parent aware of the child’s academic progress, mastery of material, completion of homework, and any behavioral difficulties in school?
- How does the parent minimize loyalty conflicts or prevent the child from feeling compelled to take sides?
- Does the parent avoid dwelling on financial or legal concerns with the child or within the child’s earshot?
Middle School-Aged Child (11 to 13 years)
- Is the parent able to contain hostility and negative discussion about the separation in the presence of the child?
- Does the parent recognize the younger adolescent’s sensitivity to criticism at this stage of self-doubt?
- How flexible and supportive is the parent of peer relationships and activities?
- How does the parent help the child remain organized and have a predictable study area and time, particularly between households?
- Does the parent know the younger adolescent’s friends and their parents?
Adolescent or High School-Aged Child (14 to 18 years)
- Does the parent support the adolescent’s participation in age appropriate activities, including financial, transportation, and psychological support?
- Does the parent attend events that the adolescent wants the parent to attend?
- How well informed is the parent of the adolescent’s school attendance, standardized and special testing, and history of report cards?
- Does the parent help the adolescent evaluate and assess decisions about the adolescent’s future and help the child plan financially?
- How does the parent discuss sexuality, healthy relationships, and other factors that may impact the adolescent, such as substance abuse, sexually transmitted diseases, and gangs?
*Other environmental and circumstantial factors may be included in best interest as well.
Factors NOT Included in Best Interest
- Infidelity– A parent’s previous infidelity is not germane to best interest, so long as it is not indicative of any negligence nor adversely affects the child.
- Marital Status– A married and unmarried person are evaluated equally under the Texas Family Code.
- Gender– Under Texas Common Law, men had previously been viewed as inferior caretakers. Today, all genders are considered equal caretakers.
- Race– Racial identity or ethnic heritage is not considered.
- Religion– Neither the parent’s nor the child’s religious disposition is considered.
- Intelligence or Lack of Training: Per Clark v. Dearen, termination of the parent-child relationship is not justified when the evidence shows that a parent’s failure to provide a more desirable degree of care and support of the child is due solely to misfortune or the lack of intelligence or training, and not to indifference or malice.
A Child’s Preference vs. Best Interest
As Holley v. Adams states, a child’s preference is considered in determining their best interest. In most courtrooms the preference of the child is valued highly by all parties in the case. However, this does not guarantee that the child’s preference will become the ruling of the court; often it is determined that a child’s best interest lies in some other outcome than that stated in the child’s preference. Thus, it is imperative to gain a holistic understanding of all the factors in a case in order to truly advocate for the child’s best interest, even if it is contrary to the the child’s stated preference.