The family law courts of Texas make several different decisions daily that affect children. These decisions include where to place children as far as their permanent residence, custody determinations as well as safety considerations, and even those that relate to the termination of parental rights. These are very important decisions which can impact families just like yours. If you find yourself involved in a divorce or child custody case, then understanding how a court will make these decisions is crucial to the well-being of your family.
The standard that a Texas family law judge would utilize to decide on these issues and more is known as the “best interests” standard. In Texas, you can think of the best interests of your child as being a term which generally means that a court will deliberate on deciding which type of court orders will serve your child best both now and in the future. This takes into consideration your child’s physical health, emotional well-being, and development over time. A Texas Supreme Court case encapsulated these considerations. Known as the Holley case, we can look to the specific consideration set forth by the court in this case.
On a general level, the goals of a Texas family court when making a best interest determination would be to think about the most important objectives on behalf of your child in terms of their emotional health and development. For one, the presumption in Texas is that the best interest of your child is served when you and your co-parent have a meaningful role to play in the life of your child. So, if possible, the court will want to ensure you and your co-parent can continue and have an important role to play in the life of your child. If possible, a court will seek to name you and your co-parent as joint managing conservators of your child.
The health and safety of your child is also important. When we think about the health and safety of your child there are considerations such as keeping your child out of harm’s way as far as their interaction with family members or other people who present a threat to them are concerned. If you have a history of abuse within the past two years before the filing of your child custody or divorce case, then you will have an especially difficult time showing a court that you can protect the health and safety of your child.
Best interest factors in Texas
A court will consider the importance of maintaining existing family ties between your children and their extended family when making decisions about what is in their best interest. If possible, not only will a court attempt to encourage your relationship between you and your children but we’ll also prefer to place your child into situations where he can have a relationship with your extended family. The household members of your child will also be determined as far as whether they present any risk of harm to your child.
A relevant consideration for a family court regarding the best interests of your child is your ability as a parent to provide for the basics of life for him or her. This would include shelter, clothing, and medical care. It is not a requirement that you be able to provide your child with any specific kind of shelter but only that the shelter be free from defects or issues that could present a risk of harm to your child. You are required to be able to provide your child with health insurance, as well. If you are not able to do so, then you are required to place your child on a Medicaid program and then compensate the state of Texas for the health insurance that way. Also, your child needs to be able to have food and water available to him or her.
What is your relationship with your child like?
Your past involvement in the life of your child matters to a court when making a best-interest determination. This is one of the issues that parents run into all the time and usually have questions about. In truth, it is usually fathers who have questions about this subject the most. There is a thought that exists that fathers are at a disadvantage in family law cases either because of bias on the part of most judges or because the law inherently helps women and mothers compared to men. The reality of the situation is that there is no bias in the law towards mothers or fathers. The Texas Family Code states that it will not give preference to mothers or fathers when assigning parental rights and duties.
Rather, what the law does state is that parents will be judged on their past involvement with their child. Meaning, that if you have not played a substantial role in the life of your child then it is unlikely that you will be able to be named as a primary conservator of your child. This means that you are unlikely to be in a position where you can have your child live with you on a full-time basis. It is not because you are a father or that your child’s mother is better suited than you are to fulfill this role. What it does mean is that you are at a disadvantage because you have not played a major role in raising your child.
This could be for many reasons. Your child’s mother may simply not have allowed you to take part in your child’s life. In that case, it is not exactly your fault that you have not been able to play a role in raising your son or daughter. Additionally, you may have been unaware you even had a child if your child’s mother was keeping that from you. Or, you simply may have been working during your child’s life and have largely been outside of the home for that reason. Or, you could have decided to not be a part of your child’s life and are now realizing that this was a mistake.
Whatever the reasoning is, if you have not played a major role in the life of your child to this point then it is unlikely that a family court judge will allow you to step into the life of your child now that you have a family case before him or her. For this reason, you should consider doing everything you can to solidify your role in the life of your child while you still have time. Trying to do this immediately before any family law case begins is not a recipe for success.
Becoming the primary conservator of your child is a common goal for parents as they embark upon a family law case. Not only are you able to choose where your child lives on a primary basis, but you are also able to receive child support, and usually make more decisions exclusively or independently regarding your child’s well-being. In short, the primary conservator designation is an important one for families going through a child custody or divorce case. However, you need to be smart about how you pursue this goal in your case.
Do your child’s opinions count when determining their primary conservator
A situation that the family law attorneys with the Law Office of Bryan Fagan run into regularly involves a parent coming into our office to express the desire to begin a family law case. Whether it is a child custody or divorce case the parent will often tell us that their child has expressed a desire to live with him or her on a primary basis. In their mind, this is all it takes to be named as the primary conservator in a family law case. These folks will tell us that they are so confident that the child will name them as their preference to live full-time that the outcome of the case will be a foregone conclusion.
What we as attorneys often need to remind the parent or inform them of for the first time is that a child’s preference is not a guaranteed factor when determining the best interests of your child in a family law case. One of the first things that we need to think about is how old your child is. As a parent, I can tell you that there is a maturity and judgment difference between my 7-year-old daughter and my one-year-old son. The same idea applies to any set of children. There is always a maturity, experience, and understanding difference between children based on their ages. This is an unavoidable truth. For that reason, the courts in Texas treat children and their opinions on conservatorship differently based on their ages.
The cutoff line for judges is age 12. We can start examining this issue by considering children who are under the age of 12. If your child has not reached age 12 then their preference on who he or she wants to live with on a full-time basis is not necessarily a relevant consideration for the judge. The judge can consider the opinions of a child younger than 12. However, it is not mandatory under the Texas Family Code. Rather, it is up to the judge’s discretion regarding whether to seek out the opinion of a child. It really can be a case-by-case basis that a judge uses this as a factor when determining whether to meet with the child.
For children who are aged 12 and above the judge must talk to that child about their preference for primary conservatorship if a parent asks the judge to do so. At that point, the judge would not have a choice. The judge would meet with the child, usually without either parent present, although a parent can ask for a record to be made of the conversation between the judge and the child. The judge would ask basic questions of the child as far as their preference on where he or she lives primarily either with mom or dad.
What many parents do not expect in this type of situation is for the judge to not delve into other topics. Do not look at the situation as one where the judge will be leaning on a child to help him or her decide in a family law case. Rather, the judge would limit their questions to issues related to primary conservatorship. Some parents expect that the judge will use this time to analyze the situation from a psychological standpoint or even perform work similar to what a psychologist would do. The judge is not there to fulfill that role or any other but to be a judge of the days before him or her.
Balancing the best interests of your child with your desires as a parent
Being able to balance what is in the best interest of your child with what is in your best interests as a parent is not easy. Many parents are surprised to learn that, upon further examination, what you want may not be what is in the best interest of your child. Discovering this truth and then being serious about following through with what is in the best interest of your child can make a big difference not only in your case but in the life of your child moving forward.
When we look at the best interest of our child it is worthwhile for us to consider what we can do as parents to defend our rights but also to be serious about ensuring that the best interest of our children is at the forefront of our actions in a family law case. Sometimes this can mean asking some uncomfortable truths and confronting those truths in a way that is not always pleasant. However, when we do this, we can usually put ourselves in our children in a position to be able to build strong relationships with one another.
First, when you are looking at the subject of primary conservatorship of your child you need to be honest with yourself about determining the best interests not very child from the perspective of which parent has performed most of the child-rearing activities to that point. If you are the parent who has primarily been outside the home and have not been able to always be available for every doctor visit, school trip, or other activity then there is not anything wrong with that necessarily.
You were performing a role for your family as the income earner. However, in performing that role there are consequences when it comes to being able to argue that you should be the primary conservator of your child moving forward. This is especially true when you consider that your child likely has a parent who has performed that role for him or her over time. When push comes to shove, even if you have displayed great parenting skills and have no history of bad behavior with your children, a judge would be more likely to name your co-parent as the primary conservator rather than you.
Again, this is not necessarily a reflection of your parenting skills and does not mean that you are not a good parent. However, what it does mean is that the other parent may be better suited to fulfill that role for the time being. This does not mean that you can’t come back later and attempt to modify the court orders if that situation changes. However, what it does mean is that right now you should be realistic with your goal setting and submit yourself to the process where you are asking to be evaluated fairly and based on the best interests of your child.
Having a family law attorney who is experienced in identifying the best interests of your child and helping you determine how to move forward in a child custody or divorce case is critically important. A family law attorney can help you to identify different factors that you may not be considered when assessing various issues related to child custody in your case. The benefit of this can be immeasurable. Rather than spending time focusing on issues or subject matter that will not help you in your case, an attorney can help you to home in on those areas of a case where you can make a difference for yourself and your child most readily.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family’s circumstances may be impacted by the filing of a divorce or child custody lawsuit.