Best Interest of the Child Standard

In many family law cases involving children, courts must consider “the best interest of the child.” The law states that the child’s best interest is "the primary consideration of the court" on issues like conservatorship and possession.

This means that a judge must consider the child’s best interest when they make decisions about all parts of custody, visitation, and child support of a child. The child’s best interest is important in most cases involving children, including divorces, modifications of existing custody agreements, termination of parental rights, and CPS cases.

Texas Family Code 153.002 

Courts can consider any relevant facts in determining what is in the child’s best interest. The Texas Supreme Court has provided a list of factors (called “Holley factors”) to consider in cases about child custody, visitation, and support:

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 person seeking custody;
5. The programs available to assist the parties to promote the best interest of the child;
6. The plans for the child made by the person seeking custody or the agency;
7. The stability of the home or proposed placement;
8. The acts or omissions of the parent that indicate that the existing parent-child relationship is not a proper one; and
9. Any excuse for the parent’s acts or omissions.

These factors come from the Texas Supreme Court case Holley v. Adams.

Courts have the discretion to look at other factors outside of the Holley factors to help decide what is in a child’s best interest. For example, a court might look at a parent’s past decisions for the child, if they follow court orders, or how each parent has met the child’s needs in the past.

You can bring up other facts about your situation that relate to the child's best interest outside of the Holley factors. The judge needs a clear understanding of the child’s situation before making final orders. Final orders can be difficult to change.

Yes. The law also has “presumptions” of what is in a child’s best interest. These are standard orders based on general policies that apply in most cases.

For example, there is a presumption that the amount of child support should follow the statutory child support guidelines under Texas Family Code 154.122. The Family Code has many other presumptions on the child's best interest, including naming parents joint managing conservators and following the standard possession order.

Presumptions can be “rebutted,” or disproven, with evidence that the order is not in the child’s best interest. 

Take the above example: the presumption that the child support guidelines determine a child support amount. Sometimes, parents will agree on a child support amount that is lower than the guideline suggestion. For a court to sign an order with child support lower than the guideline, the parties must rebut the presumption by showing evidence that the guideline amount is not in the child’s best interest and the agreed amount is in the child’s best interest.

Some presumptions require specific types of proof to rebut. For example, to disprove the presumption that appointing a parent as a managing conservator is in a child’s best interest, a party must prove that appointing that parent “would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development.” See Texas Family Code 153.131.

In cases with a history of family violence, child abuse, or neglect, the presumptions about conservatorship, possession, or visitation may not apply. In those cases, the court may not be allowed to make orders based on the general presumptions and can consider other factors to determine the child’s best interest. See Texas Family Code 153.004.

Cases involving family violence, child abuse, or child neglect are very complicated when determining custody and visitation matters. It is best to be represented by an attorney if there is any history of family violence, child abuse, or neglect in your situation.

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