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What Is the Best Interest of the Child?

Posted on in Child Custody

Texas child custody attorney, Texas divorce lawyer, Texas complex litigation lawyer, The Texas Family Code states that all visitation and custody orders must be in the best interests of the children, but the law gives little direction in terms of making that determination. Thirty years ago, the Texas Supreme Court released its landmark decision in Holly v. Adams. Parents, practitioners, and judges still rely on this opinion to legally determine the best interests of the children in a variety of complex child custody situations.

This case involved the involuntary termination of parental rights, one of the rarest family law matters. Mother essentially abandoned Husband and their young son. In the ensuing years, she spent some time in a mental hospital, lived as a gypsy with three other men, got re-married and re-divorced, and eventually settled near Seattle.

Father sought to terminate Mother's parental rights on the basis that she provided almost no financial support ($100 in five years, according to records) and had no contact with the boy, other than two or three visits or letters per year. Nevertheless, the Supreme Court ruled that termination was not in the child's best interest.


In reaching its conclusion, the justices used the following nine factors; it expressly said that the factors are not exhaustive.

  • Desires of the Children: In the revised Family Code, the judge must give preference to any children over age 12. A judge may take younger children's preference into consideration, in some circumstances, but that preference is not binding.
  • Children's Current and Future Emotional and Physical Needs: This factor speaks not only to the children's needs, but also each parent's ability to meet those needs.
  • Emotional and Physical Danger to the Children: Bear in mind that terms like "abuse" and "neglect" are extremely broad.
  • Parental Abilities: The custodial parents must take care of the children and effectively co-parent with their former spouses.
  • Assistance Programs Available: Such programs include available emotion and financial support networks from government, charity, friends, and family.
  • Plans for the Children: Some parents are so focused on "winning" custody that they have few plans for their children's future.
  • Stability: Most young children need to live in an environment that is fairly predictable, and there are few residence changes or other alterations.
  • Parents' Acts or Omissions: Everyone makes mistakes and poor choices, but a pattern of such behavior is disturbing.
  • Any Excuse for the Acts and Omissions: This area is limited, because most judges consider blaming third parties to be a lack of personal responsibility.

Other important factors include the formal and informal agreements between the parents and the recommendation from a social worker, if any.

For a consultation in this area, contact an aggressive Cedar Park family law attorney today. Mr. Powers is a family law expert.



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