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The Role Best Interest of the Child Plays in Family Law Decisions

The Family Code is clear: "the best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child."  Tex.Fam.Code § 153.002. In fact, many statutes addressing issues related to children require a best interest analysis; for example, the presumption that both parents be named joint managing conservators is dependent on such appointment being in the best interest of the child.

Holley Factors

The most cited case regarding best interest is the Texas Supreme Court's 1976 decision Holley v. Adams.  The Court wrote that certain factors to consider in ascertaining the best interest of a child include the following:

  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 parenting abilities of the individuals seeking custody
  5. the programs available to assist those individuals to promote the best interest of the child
  6. the plans for the child by these individuals or by the agency seeking custody
  7. the stability of the home or proposed placement
  8. the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one
  9. any excuse for the acts or omissions of the parent

These factors are not exhaustive. Some factors may be inapplicable in some situations; other factors not on the list may be considered when appropriate.  Nevertheless, the Holley Factors provide an established framework for a “best interest” analysis.

Trial courts are afforded wide latitude in determining the best interests of a child. In Lowe v. Lowe, the Houston court stated that in “suits involving the parent-child relationship, more than two interests are involved: the mother’s interest, the father’s interest, and, of paramount importance, the child’s interest, and under the family code, the ultimate question to ask is what is in the best interest of the child.”  Essentially, all SAPCR litigation boils down to the fundamental question of what is in the child’s best interest.