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)

  1. How can the parent respond to the child’s needs in eating, sleeping, and bathing?
  2. Is the parent aware of things that could endanger an infant?
  3. Has the parent shown capability in supplying basic needs?
  4. How is a parent’s physical and psychological health?
  5. Does a parent have a substance abuse issue or medical problem? If so, has the issue been addressed?

Toddler (18 months to 5 years)

  1. What kinds of learning opportunities does the parent create for the child to master both physical and mental tasks, including language development?
  2. 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?
  3. Does the parent provide sufficient opportunities for the child to socialize with other children and supervise these activities in order to ensure safety?
  4. Does the parent set expectations and rules that promote self-control and safety?
  5. How does each parent support the child’s relationship with the other parent?

Early Elementary School-Aged Child (5 to 7 years)

  1. How is the parent involved in the child’s community, school, and religious activities?
  2. Does the parent provide the child with time and a place to do homework, as well as provide assistance when needed?
  3. Does the parent communicate with teachers, coaches, and leaders?
  4. How does the parent handle academic difficulties that may require assessment, intervention, financial resources, and individual help?
  5. 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)

  1. How does the parent encourage the child’s need for productivity and self-reliance by supporting and facilitating involvement in activities?
  2. Does the parent seem to recognize the importance of peer friendships and foster these relationships?
  3. Is the parent aware of the child’s academic progress, mastery of material, completion of homework, and any behavioral difficulties in school?
  4. How does the parent minimize loyalty conflicts or prevent the child from feeling compelled to take sides?
  5. 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)

  1. Is the parent able to contain hostility and negative discussion about the separation in the presence of the child?
  2. Does the parent recognize the younger adolescent’s sensitivity to criticism at this stage of self-doubt?
  3. How flexible and supportive is the parent of peer relationships and activities?
  4. How does the parent help the child remain organized and have a predictable study area and time, particularly between households?
  5. Does the parent know the younger adolescent’s friends and their parents?

Adolescent or High School-Aged Child (14 to 18 years)

  1. Does the parent support the adolescent’s participation in age appropriate activities, including financial, transportation, and psychological support?
  2. Does the parent attend events that the adolescent wants the parent to attend?
  3. How well informed is the parent of the adolescent’s school attendance, standardized and special testing, and history of report cards?
  4. Does the parent help the adolescent evaluate and assess decisions about the adolescent’s future and help the child plan financially?
  5. 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.

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.