Protecting What You Value Most

How do courts determine best interest of the child?

by | Apr 5, 2019 |

Child custody battles are some of the most contentious during a divorce. While parents may believe they can make an argument for which would be the better parent, the courts consider one specific goal: What is the best interest of the child?

Years ago, a divorce would automatically result in the children being sent with their father. During the 1960s and 1970s, that flipped to an automatic assumption that children would be placed with their mothers. As more women entered the work force and fathers agitated for parental rights, courts shifted their attitudes again to a more 50-50 approach so that today, the main determination in child custody is what situation will be in the best interest of the child.

Physical, mental and emotional needs

In Texas, the definition of “child’s best interest” is vague for a reason. It allows the courts to use a case-by-case standard to determine child placement.

The state’s overall policy concerning child well-being states that the child will:

  • Have frequent contact with parents who have shown they have the best interests of the child in mind
  • Be in a safe, stable and nonviolent environment

To determine the child’s best interest, factors include the:

  • Child’s emotional needs
  • Child’s physical needs
  • Parent’s ability to care for the child
  • Environment and stability of the home
  • Parent’s plan for caring for the child
  • Possibility of being placed with an abusive parent
  • Child’s preference if the child is 10 years old or older. The child has to make the request in writing and even then, the court may not honor the request if it is in the child’s best interest to be with the other parent.

Sole or joint conservator

There are two custodies at stake in the divorce: legal custody and physical custody. The legal custodian makes decisions for the child’s medical, educational, emotional and religious needs. The physical custodian takes care of the child’s home, food, clothing and physical well-being.

Courts can sometimes offer 50-50 legal custody if the parents are both well-adjusted and communicate well together. Rarely does the court grant 50-50 physical custody under the belief that a child needs a continuous, stable home life.

Once custody has been determined, it is very difficult to change. Both parents have to agree to any change and the change has to be approved by the judge who granted the original custody arrangement.

Divorce is a difficult event and determining child custody is a difficult process. If you or someone you love needs advice during this time, contact an experienced, qualified attorney.