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Many times in legal proceedings that include children, the term “best interest of the child” arises. This term is most prominent in suits affecting the parent-child relationship. What is considered the best interest of the child and when is it important? Let’s discuss.
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Definition “Best Interest of the Child”
The best interest of the child is one of the most monumental considerations by the court when a child is involved. Section 153.002 of the Texas Family Code states, “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.”
Factors to Determine the Best Interest of the Child
The Texas statute is very vague on what exactly this very monumental standard means. The Code does not list a set of factors to help courts determine the best interest of the child. In instances like this, where statutes are lacking in definitions, courts and legal professionals look to legal precedent set by previous cases that attempted to answer this question.
Legal precedent has set the following as factors the courts may consider in determining the best interest of the child. These factors include, but are not limited to:
- What the child actually desires
- Present and future emotional and physical needs of the child
- Present and future emotional and physical danger to the child
- The ability of each each individual seeking custody to parent the child
- The income and home environment of each individual seeking custody
- Programs available to each individual seeking custody that may aide in promoting the best interest of the child
- Any history of family violence of each individual seeking custody
- The future plans set for the child made by each individual seeking custody
- The ability of each individual seeking custody to maintain stability in the child’s life
- Any act or omission of an act from each individual seeking custody that may potentially harm the child
What About Child’s Preference?
The Texas Family Code allows a child of a certain age to make a determination in writing of that child’s preference to a certain situation.
Section 153.009 of the Texas Family Code states:
“In a nonjury trial or at a hearing, on the application of a party, the amicus attorney, or the attorney ad litem for the child, the court shall interview in chambers a child 12 years of age or older and may interview in chambers a child under 12 years of age to determine the child’s wishes as to conservatorship or as to the person who shall have the exclusive right to determine the child’s primary residence. The court may also interview a child in chambers on the court’s own motion for a purpose specified by this subsection.”
This section states that a child over 12 years of age may be interviewed in the judge’s chambers to determine the child’s wishes. However, it is monumentally important to note, a child’s wishes is not the determining factor while considering what is in the best interest of the child.
The Code specifically states, “Interviewing a child does not diminish the discretion of the court in determining the best interests of the child.”
In sum, although considering all factors including the child’s preference may have great weight on the court’s decision—neither factor on its own is determinative. The ultimate decision is always left to the court’s discretion.
