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Approaching the Best Interests of your Child from the perspective of a family court judge

The overarching standard that a judge in your child custody or divorce case will utilize in order to make decisions in your case that are relevant to your children is the “Best Interests of the Child” standard. Like the phrase indicates, your judge does their best to make decisions that are intended to promote what is in the best interests of your child. This would seem to be a noble goal, if not one that is difficult to determine on a case by case basis.

While there may be many things that we can all agree are in the best interests of a child, but there are probably many more things that would cause some argument or debate on this subject. With as many valid opinions about what could be in the best interests of your child, imagine how each of the family law judges in our area could differ on this subject if left entirely to their own devices when it came to making a determination about what is and what is not in your child’s best interests.

Fortunately, there are some guiding principles that judges apply to make best interest determinations in child custody or divorce cases. Today’s blog post from the Law Office of Bryan Fagan will attempt to look at this subject from the perspective of the only person in your case whose opinions ultimately matter- the judge.

What the role of a judge is in a family law case

The judge in the court where your case has been assigned is asked on a daily basis to make determinations regarding children that he or she has likely never met and will never meet. Their view of those children, and of yours as well, will be shaped by the evidence that is presented to them in hearings and trials. Their opinions and biases (no matter how adept they are at suppressing them) will play a role as well.

No matter how good a judge is at subduing their own biases and opinions in favor of approaching a case from an objective viewpoint there is no way that they can completely wipe their hard-drives clean of those thoughts and perceptions. That is human nature, after all. They may be better at looking at a case objectively than you or I but they are not perfect. The best interests of the child standard would seemingly leave judges open to making whatever determinations they would like (within reason). After all- it would be fairly simple to argue best interests of a child based on a subjective viewpoint if their decision were appealed by one parent or the other.

Family Court judges are usually forthright and honest about this. There is little within the Texas Family Code that can reign in their ability to make decisions that are, in their opinion, in the best interests of your child. The problem that judges run into frequently is that there is often very little difference between the parenting abilities of the two people that come into their courtroom.

What judges are then forced to deal with is back and forth mudslinging that attempts to demean and debase the other parent. While this may be therapeutic for you and your spouse if you find yourself in this situation it can make a judge’s job very difficult. The reason is that there is typically very little evidence presented in this sort of hearing or trial that can assist the job in making a best interests determination.

What a judge would like to see in a trial or hearing

Rather than mud-slinging, a family court judge would likely prefer to see evidence that allows him or her to compare and contrast the parenting abilities of you and your spouse. These contrasting abilities can help the judge to differentiate between where you and your spouse are strong in your parenting and where you may be deficient in some regard. Taking these factors into consideration a judge can more fully determine what is in the best interests of your child based on their particular age and circumstances.

Texas case law does not guide judges all that much when it comes to the best interest standard

Unfortunately, judges in Texas do not have much in the way of guideposts from which to operate when it comes to determining what is in the best interests of a child. Usually, case law (decisions made by appellate courts in Texas) can be applied to help trial court judges make decisions but there are very few decisions that relate to the best interests of the child standard in Texas.

However, there is one family law case that went to the Texas Supreme Court in relatively recent years that judges use across our state to guide their decision making when it comes to making decisions that are in the best interests of your child. That case is Holley v. Adams. From that case, the “Holley” factors have become popular as a means to help guide family court judges when making best interest determinations.

The specific details of this Texas Supreme Court case are not all that relevant to our discussion today. In brief, this was a termination of parental rights case. Within the decision, the Court laid out a set of factors that family court judges should use from that point forward in order to guide their thought process when making best interest of the child determinations in the cases that they hear.

I think that we will see that the factors laid out by the Court are helpful in most situations. This is especially true, in my opinion, given that before this case family court judges had very little in the way of meaningful guideposts to help make these important decisions on behalf of a child and their family. The limitations of the Holley factors come into play, as I mentioned earlier when parents are of basically the same ability when it comes to actually parenting their child.

A hypothetical example to help illustrate why the Holley factors are difficult to apply

Let’s assume that you are an emergency room nurse who works a typical 8 a.m. to 5 p.m. shift. Your husband is a city of Houston employee who works basically the same hours that you do. Both of you have been good parents- no trouble with the law, have been present in the home, have never been violent with one another or the children. Your family has three children- two teenagers and a child who just turned two. One of your teens would like to live primarily with you after the divorce is finalized and your other teen would like to live with your husband primarily. Ultimately a judge will be interviewing both teenagers regarding their living preferences.

How can a judge in this situation serve the best interests of your children and apply the factors that are relevant in the Holley?

First off, your judge would need to look to what your child’s preferences are. If your judge stopped here and only considered the preferences of your children then the kids would be split up with each of your teenagers living apart and your little one living with either mom or dad. From my experience, most judges would not be in favor of doing something like this. Children need the stability of their siblings during a divorce and in the time period immediately following the divorce. What’s more, the opinions of children change as often as the wind blows it seems like. Even little things like which parent is the better cook or which ones let the teens stay online later can make a difference as to what preference the kids have.

Fortunately, the judge will not only take the preference of the kids into consideration when making a best interests determination. If it were this would be a pretty quick analysis, but it could be the farthest thing from the best interests of the children to listen only to what they want at that moment in time.

The next factor that a judge should consider is probably the most important one. The physical and emotional well being of your children need to be considered. If your attorney is able, he or she should present evidence in your hearing that details how you have parented in terms of protecting your kids, promoting their education, and showing them how to develop independent personalities.

This is simultaneously the most important and often the most difficult factor for a judge to evaluate when parents are basically equal in terms of their parenting histories and presence in the home. It is easier if you are the constant force for good in your children’s lives and your spouse has been an absentee parent for just as long. While some cases end up looking like this most do not.

Is there an emotional or physical danger posed to your children by you or your spouse?

The third factor that a judge should consider is if either the home environment, that of yours or your spouse, would offer any potential danger to your children in terms of their physical or emotional well-being. For the most part (fortunately) this is not an issue in child custody or divorce cases. However, on occasion, there will be a case where a spouse had to leave the home because he or she has acted violently towards a spouse, significant other or child. In that case, this is a very relevant factor. For your case (based on the above hypothetical scenario that we laid out) it is not all that relevant.

More relevant is the fourth factor- your and your spouse’s abilities to parent your children. This goes almost completely to your history of parenting and involvement in the kids’ lives. Picking the kids up from school, helping with homework, taking them to the doctor, driving them to soccer practice and engaging in their religious upbringing are just a few examples of how you can present a strong case in this regard to the judge.

For what its worth, many parents attempt to make up for lost time when the divorce or child custody case is filed by all of a sudden becoming the most engaged and active parents in the history of parenting. Judges can pick up on this very easily, and if some reason he or she does not your spouse will likely be more than happy to make this known to the judge.

Getting help in raising your children

The fifth factor that a judge will look to when making best interest determinations for your child is what programs are available in your communities to help assist with individual circumstances that have arisen in your family. For example, if the middle school in your neighborhood has a great program that works with autistic kids you would get a leg up in the custody battle if one of your teenagers is autistic. If your child is special needs and is receiving help through programs like this a judge will not be overly excited to change up their routine that has been working well.

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Law Office of Bryan Fagan, PLLC | Houston, Texas Divorce Lawyers

The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with one of our Houston, TX Divorce Lawyers right away to protect your rights.

Our divorce lawyers in Houston TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles Divorce cases in Houston, Texas, Cypress, Klein, Humble, KingwoodTomballThe Woodlands, the FM 1960 area, or surrounding areas, including Harris CountyMontgomery CountyLiberty County, Chambers CountyGalveston CountyBrazoria CountyFort Bend County and Waller County.

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