What is the “Best Interest of the Child”?

In Texas, unless the parties are able to resolve certain issues related to the child including conservatorship and possession, the court acts in the “best interest of the child” when deciding these matters.

Per Section 153.002 of the Texas Family Code, 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. The court may consider a number of factors when making its decision such as:

  • the child’s age
  • a parent’s ability to meet the emotional and physical needs of the child
  • stability and consistency at home (routines, etc.)
  • previous involvement in the child’s life (education, extracurricular activities, etc.)
  • evidence or history of domestic violence
  • reports of child abuse, including reports from either parent or false reporting of child abuse by either parent
  • whether or not a parent fosters a loving relationship between the other parent and the child
  • evidence of a parent alienating the child from the other parent
  • evidence of a parent disparaging the other parent in front of the child
  • the child’s preference

Children Age 12 and Older

In Texas, unless the parties are able to resolve certain issues related to the child including conservatorship and possession, the court acts in the “best interest of the child” when deciding these matters. Many parents mistakenly believe that under Texas law that a child can make their own decisions (i.e., where they primarily want to live) once they turn twelve years of age or older; however, this issue is more complicated and requires a thoughtful approach prior to requesting that the Court talk to your child.  Bottomline—the Court always seeks the Best Interest of the Child despite what the child may say he/she wants.

A child’s preference is only taken into account in some cases. Before a Court can take into consideration a child’s preferences, a Motion to Confer with Child in Chambers is filed by the party wanting the Court to hear from the child and a hearing must be had on this issue if the other party does not agree for the child to confer with the Court.  Even then, the Court is not bound by the child’s preferences.  In fact, while it’s a parent’s right to file this type of motion, many Courts prefer to hear from third party professionals involved in the case (i.e. Guardian ad Litem, therapists, etc.) because they’re more intimately involved in the family’s life. Court’s often feel this a better approach to determining the child’s best interest instead of putting the child in a situation where he or she may feel in the middle of the parents’ fight.

As you’ve seen above, a child’s preference is just one of the many factors a Court may consider when deciding the child’s best interest. You should always speak to your attorney before speaking to your child about the possibility of discussing his/her preferences with the Court so that you do not put yourself in a less favorable position.

Lastly, it is never a good idea to bring your minor child to the courthouse without a Court’s order or permission to do so.  This rarely goes well for the parent who brings the minor child to Court, as this unnecessarily involves the child in the legal process and puts them in a very stressful situation. Always speak to your attorney before bringing a minor child to the courthouse (or involving the child in a virtual hearing) for any reason.