Best Interests Of The Child

The parent’s desires and claims are secondary when determining the “best interest of the child.” Furthermore, the parent’s wishes are only important in so much as these wishes answer the question of what would serve the best interests of the child. The Texas Family code provides that “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.” Holley v. Adams, 544 S.W.2d 367 (Tex. 1976) decided by the Texas Supreme Court 32 years ago, lists a set of factors that the courts have considered when determining the best interest of a child. A non-exhaustive summary of these factors include: the desires of the child; the emotional and physical needs of the child now and in the future; the emotional and physical danger to the child now and in the future; the parental abilities of the individuals seeking custody; the programs available to assist these individuals to promote the best interest of the child; the plans for the child by these individuals; the stability of the home; the acts or omissions of the parent which may indicate that the existing parent child relationship is not a proper one; and any excuse for the acts or omissions of the parentnnThe list I have provided in this blog is not complete and there are other factors considered in the determination of what is in the best interest of the child. As you noticed the desires and claims of the parents is not one of the factors on this list. Expert witnesses or lay witnesses may be called to substantiate or to provide evidence that these factors do or do not exist, but it is well established that judges and jurors are the sole judges of credibility of the witnesses and the weight to give their testimony. I believe extra emphasis needs to be placed on the role of the judges and jurors in determining what weight to give the evidence. Child custody issues can be extremely emotional and divisive! The more divisive the situation, the more expensive the suit affecting the parent-child relationship is going to be. If the parties agree can come to an agreement on their child custody issues, they have more control over the outcome of the suit, subject to the approval of a judge. On the other hand, going to trial, they put their lives and the lives of their children into the hands of the trier of fact, be it a judge or a jury! nnn