The best interest of the child is the overarching factor in deciding Texas family law custody cases. The specifics of how a judge should approach examining the best interest of the child was first set out by the Texas Supreme Court in 1976 in the case of Holley v. Adams. The non-exclusive list of factors from that case include:
(1) the desires of the child;
(2) the emotional and physical needs of the child now and in the future;
(3) the emotional and physical danger to the child now and in the future;
(4) the parental abilities of the individuals seeking custody;
(5) the programs available to assist these individuals to promote the best interest of the child;
(6) the plans for the child by these individuals or by the agency seeking custody;
(7) the stability of the home or proposed placement;
(8) the acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one; and
(9) any excuse for the acts or omissions of the parent.
Holley v. Adams, 54 S.W.2d 367 (Tex. 1976).
In an article from the December edition of the Texas Bar Journal, Judge Donald Dowd of Cass County cites to a publication by the American Bar Association – A Judge’s Guide: Making Child-Centered Decisions in Custody Cases for a list of some questions that an attorney can ask a client based on the age and development of the child to establish 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?
- lf 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?
Depending upon the age of the child, the attorney who gives the judge the answers to these questions in close cases such as these may give the client the slight edge needed to win the case.