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Want to know how your judge will evaluate what is in the best interests of your child? Read this blog post

If you have ever been through a legal case where you had to appear in front of a judge for a hearing or trial, you have probably had the same thoughts that every attorney in the history of the law has had: I wonder what that judge is thinking. Attorneys spend hours and hours preparing cases to present to a judge and ultimately it all boils down to what that judge thinks about your case on any given day. A lot of work goes into preparing for a relatively short hearing.

The difficult thing about it is that every judge has different opinions about different situations and circumstances. The judge that your case has been assigned to likely thinks differently about your case facts that the judge across the hallway from her. If there are specific criteria that a judge would have to apply when evaluating a specific issue that can make preparation for a hearing or trial much easier.

In yesterday's blog post from the Law Office of Bryan Fagan, we began to go through the factors that the Texas Supreme Court laid out for the evaluation of a child’s best interests in their Holley v. Adamscase. There are ten factors and we made it through five. We will follow up today with a discussion on the remaining five factors. If we have the space available in this blog post to do so we will also look at how your judge is likely to apply those factors to children of various ages, from infants all the way up to 18-year old’s.

Where do you see yourself and your child in five years?

This is like the question that employers commonly ask job applicants in their interviews. If you are interviewing for a job the employer wants to know where you see yourself in five years so that they can evaluate your ability to plan a future for yourself. Your specific goals are important too, it’s just that the employer likely wants to see if you have given any serious consideration to where you want to be in the next five years.

A judge will evaluate evidence in your divorce or child custody case in a similar way when it comes to your plans for your family. If you are able to elaborate in your testimony about what goals you have for yourself, your family and your children then it shows that you have the ability to think critically, be intentional and above all else care for your children. The inability to discuss this subject on the record would work against you.

From my experience, the judge will be especially concerned with your plans for your family if you have a unique circumstance like a job that could cause you to wind up living on the other side of the world. Another circumstance that judges want to see some intentional thinking and advanced planning is if your child has a disability. What sort of care will be necessary for your child in two years? Five years? Where will your child receive that care and how will you best ensure that the care is received? Start to think about these issues now rather than waiting until you are on the witness stand to formulate a plan.

What’s more, the plan that you have in mind must be conducive to your living situation. Your home life will likely be a factor in this decision as well. Where do you live? How safe is the area where your home is located? Is anyone living with you besides your children? If so, what is their relationship to you? These are the sort of questions that a judge would likely ask herself when it comes to determining if your home environment would actually allow your plans to be enacted.

In reality, the final couple factors that a court would likely use to evaluate the abilities of you and your spouse to parent your children are unlikely to be relevant to your case. Specifically, a judge would try to find out if there are any actions or omissions that you have undertaken (or have failed to undertake) that could impact your ability to parent the children. Acting irresponsibly or negligently in some regard in the past is what this is referencing. Again, this is not likely to have arisen in your case. The reason is that if there is some serious issue at play the parent who committed that act of neglect likely would have settled their case long ago rather than to wait and spend the money to go to court only to have a judge rule against him or her.

Children have different needs at different stages in their lives

I realize that most everyone knows that an eight-year-old child has different needs than an eighteen-year-old child. Anyone who’s a parent could tell you a thousand differences between their teenage son and their grade school daughter. With that said, there are some specific considerations that your judge is likely to apply to the children in your case based on their age. Let’s take some time to consider the various age groups that your child may be a part of and how a judge would think about them based on their age.


An infant, a child who is between the ages of newborn to eighteen months, will have a great deal of scrutiny applied to parenting skills, methods and habits. Specifically, you are going to be judged based in part on your ability to anticipate things that could place your child at risk of harm. When we spoke earlier about neglect and taking action or failing to take actions that could be detrimental to your child those issues are especially relevant when it comes to very young children. The reason for this is that your infant cannot anticipate any condition that could potentially harm him or her. They are completely reliant on you for care and in making sure that they are safe.

The only real way to judge your ability to anticipate harm and protect your child from those risks of harm is to look at your history as a parent. If you and your spouse are both equally adept at providing for your child’s basic needs, then this may not provide either you or your spouse a "leg up" in the best interest of the child determination.

It is not only your child’s well-being that is at issue when it comes to infants, but it is also your well-being, both physical and mental, that is relevant. Do you suffer from a mental health condition that has resulted in you seeking inpatient medical attention? Do you take medication for a mental health problem even if you have never received care at a hospital? What about any sort of physical impairment? Are you unable to care for yourself much of the time? If any of these issues are relevant in your life, then you may not be able to provide the sort of stable and safe upbringing for your child that a judge would ideally look for. These may be factors that are completely out of your control, but if they are apparently the judge will likely consider them.

Drug and alcohol addiction can be among the most crucial habits of a parent that a judge will need to figure out. If you have a remote history of drug or alcohol abuse there is a good chance that a judge will not consider it to be a factor as to why you could not have your children live with your primarily after a divorce, for example. However, if you are currently battling an addiction to these substances it is very unlikely that a judge would side with you in a custody dispute with your spouse or significant other. The reason is that substance abuse problems tie together every other issue that we have discussed so far in this section on infants. Intoxicated people are in no way able to provide for a safe environment for a child, react to danger or generally protect an infant from harm.

Finally, there are basic requirements of daily life that you as a parent of an infant must be able to fulfill. I'm talking about feeding, bathing, diaper changing, regular doctor visits and things of that nature. If you are the parent of a young child who is breastfed obviously the mother would have a leg up as far as primary custody is concerned if for no other reason than only she is able to feed the child as frequently as he or she needs. There are ways around this reality but for the most part, mothers tend to win out in this specific area.


Toddlers are aged eighteen months to five years old. It’s only three and a half years in total age difference between the youngest toddler and the oldest toddler but developmentally the needs of an eighteen-month-old and a five-year-old are quite different.

By this age, many parents (specifically mothers) are back to work full time by either necessity or desire of the parent. A judge would look to whether you have safe and reliable childcare available to make sure your child is safe and looked after while you are working. Preferably the child would be able to look after in an environment where they could learn and grow mentally, physically and emotionally. Leaving your child with your neighbor each day is fine, but a school environment is preferable.

Getting down into some of the nitty-gritty areas of parenting a toddler, a judge would likely look to whether or not you promote learning in your activities with your child. If it comes out that your typical way of parenting is to plant your son in front of the television while you surfed the web on your laptop that would not speak highly of you. On the other hand, if trips to the library were a regular occurrence and you encouraged your child's curiosity in the outdoors that would speak well of your showing initiative in regard to education and learning in general.

How well adjusted, socially speaking, is your child? Does your child attend daycare or Montessori school? Are there playtimes scheduled with neighborhood parents or children? Are there a lot of children your son's age in your family where regular playtimes occur? Socialization of toddlers is incredibly important and if your case comes down to a factor as specific as this one he or she would like to have you in a position where you could socialize your child and encourage their development in this manner.

Finally, toddlers are very perceptive and are able to see how their parents relate to one another- either poorly or well. If you can show that you will encourage your child to have a strong relationship with your spouse (soon to be ex-spouse) then that will be a point in your favor. Alienation of affection is a major problem in both divorces and child custody cases. You would stand out from the herd if you showed a willingness and desire to promote your child's relationship with their other parent despite your own problems with him or her.

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