In family law cases involving children, the legal standard on which Texas courts rely is the “best interest of the child.” While this phrase may sound self-explanatory, it is actually a legal standard that involves many factors and considerations. Courts do not rely on a single definition of what is “best,” but instead evaluate a variety of elements to determine what outcome will most effectively protect a child’s safety, stability, and overall well-being.

Understanding this legal burden is especially important if your lawsuit is contested and you are required to present your case before the Court.

           A.  When Does the Best Interest of the Child Standard Apply?

The “best interest” standard applies anytime there is a lawsuit involving a child. This includes, but is not limited to, matters involving possession and access (often referred to as “visitation”), decision-making rights, enforcement actions, termination of parental rights, child support, and any other matters impacting a child’s day-to-day well-being. This standard ensures that the court prioritizes the child’s needs, safety, and welfare above all else.

           B.      What Factors do Courts Consider in Determining the Best Interest of the Child?

Courts may consider any relevant facts when determining what is in a child’s best interest; there is no exhaustive list of factors. However, the Texas Supreme Court has identified a commonly used set of considerations known as the Holley Factors. In Holley v. Adams, the Court explained that a factfinder (judge) may consider, among other things:

  1. The desires of the child;
  2. The present and future physical and emotional needs of the child;
  3. The present and future emotional and physical dangers to the child;
  4. The parental abilities of the person seeking custody;
  5. The programs available to assist the parties to promote the best interest of the child;
  6. The plans for the child made by the person seeking custody or the agency;
  7. The stability of the home or proposed placement;
  8. The acts or omissions of a parent that indicate that the existing parent-child relationship is not a proper one; and
  9. Any excuse for the parent’s acts or omissions.

As previously noted, courts are not limited to the Holley Factors and may also consider other relevant circumstances, such as the child’s age, history, daily routine, and what has been the norm for the child.

          C.        Are there Any Presumptions?

Yes. In some situations, Texas law includes rebuttable presumptions that guide the court’s analysis in determining a child’s best interest. For example, there is a presumption that appointing both parents as joint managing conservators is in the child’s best interest, unless evidence shows that doing so would not be appropriate.

There is also a presumption that when a child is over the age of three, a Standard Possession Order is in the child’s best interest. A Standard Possession Order is a visitation schedule outlined in Texas Family Code Section 153.3101 which addresses times for exchanging the child with the other parent, weekday and weekend visits, holidays, the child’s birthday, spring and summer breaks, and other important events. Different schedules may apply depending on the distance between the parents’ residences.

These presumptions are not absolute. If evidence shows that a Standard Possession Order or joint conservatorship would not be in your child’s best interest, the court may deviate from the presumption.

There are also circumstances where presumptions may weigh against a parent, such as cases involving a history of family violence, abuse, and neglect. While presumptions are not absolute, they establish a starting point that the court considers alongside the evidence presented

             D.     How Can I Prove What is in the Best Interest of the Child?

A judge determines the child’s best interest by reviewing the evidence presented, which may include testimony from the parents and other individuals with relevant knowledge of the child’s circumstances, as well as school records, medical records, therapy records, other relevant documentation, and, sometimes, statements by the child.

If you have any questions or need guidance on how to best present your case to highlight the best interest of your child or children, please contact our office to schedule a consultation with one of our attorneys.

Written by Maria E. Portella