The Texas Family Code states that the “best interest of the child” shall always be the primary consideration in determining issues regarding children.
The Texas Supreme Court set out a list of factors in Holley v. Adams (1976) that courts should consider in the best-interest analysis. These include: the emotional and physical needs of the child now and in the future; the emotional and physical danger to the child now and in the future; the parental abilities of the individuals seeking custody; and the acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one.
Many subject areas in family law have their own presumptions, rules and additional factors for courts to consider.
For example, there is a rebuttable presumption that the standard possession order is in the best interest of the child. However, for a child less than 3 years of age, the Family Code provides that the court shall consider additional factors, including: the caregiving provided to the child before and during the current suit; the effect on the child that may result from separation from either party; the availability of the parties as caregivers and the willingness of the parties to personally care for the child; and the physical, medical, behavioral and developmental needs of the child.
For some judges, legal presumptions are extremely significant and are difficult to rebut. For others, presumptions carry little weight and are quickly discarded. A lawyer should attempt to determine the judge’s tendencies. Particularly with judges less experienced in family law, the attorney should consider filing a trial brief detailing the appropriate legal authority.
Generally, courts view the best-interest analysis from the child’s perspective, rather than from the parents’ perspective. However, that concept is not always readily apparent to family law litigants. A significant part of a family lawyer’s job involves managing the client’s expectations and behavior.
Parents often focus on the hours or days each spends with the child. However, such a scorecard approach may treat the child as a possession to be maximized, rather than as a vulnerable being with emotional needs to be met through time with both parents. Usually, the proper focus is on the child’s needs regarding the parents, not the parents’ needs or desires regarding the child.
Parties often are on their worst behavior during divorce litigation. Often, the family lawyer experiences an ongoing struggle with the client because of the party’s inappropriate behavior with the child or other parent. When the other side does something inappropriate, many parents are unable to resist the urge to respond in kind.
Further, parties often insist on unwise litigation goals or tactics, which only serve to demonstrate to the court that the party does not have the child’s best interest at heart. The lawyer may lose credibility with the court if she simply parrots the client’s untenable positions.
Instead, the lawyer repeatedly should remind the client to focus on the issues that significantly affect the child, rather than on those that irritate the parent. The lawyer should insist that the client always take reasonable positions and travel the high road.
There is a family law expression: “Shoes come in pairs.” This means that a party in a divorce often engages in negative behaviors similar to those about which he or she is complaining. Sometimes, however, only one party is a bad actor. Unfortunately, because judges so often encounter two sides slinging mud or engaging in inappropriate behavior, it can be difficult to convince a judge that the ugliness is only coming from one side of the case.
For the well-behaved party who is on the receiving end of such unilateral malfeasance, family court can be a frustrating place. The client often develops an understandable focus on justice and punishment that litigation never will satisfy. This requires the lawyer to emphasize the factors that comprise the best-interest analysis.
Parties in family law litigation often focus on “winning.” But one side winning often doesn’t advance the best interest of the child. Rather, the child wins when the parents or the court achieve the best possible balance in imperfect circumstances.
The family lawyer should focus on the real issues. A parent’s sordid conduct may be largely irrelevant if it did not occur in the child’s presence. Because salacious details may play little or no part in the best-interest analysis, excessive focus on such conduct often is ineffective or counterproductive.
Often mental health professionals, parenting facilitators and amicus attorneys help the court evaluate the best interest of the child. In some situations, the lawyer has no choice regarding the appointment of such ancillary professionals. In others, he must evaluate the case’s circumstances to determine whether such an appointment would be practical and productive or simply introduce a wild-card element. The lawyer should counsel the client regarding the need to cooperate and appropriately interact with such professionals.
The lawyer should be familiar with all applicable best-interest factors set forth in the Texas Family Code and case law. Often, the trial presentation should track that outline. Witnesses should be carefully chosen to provide supporting evidence for the best-interest factors. Often a smaller amount of high-quality evidence is more effective than a large quantity of irrelevant testimony or documents.
While the best interest of the child standard may seem simple, its application can be complex. A solid grounding in the law and skillful client management are necessary for a successful family law practitioner.