The “best interest of the child” is today’s guiding principle in Texas child custody determinations. Historically, this has not always been the case, and this concept still faces challenges, running counter to the traditional attorney-client relationship which places the client’s (the parent’s) interests first. The true best interest of the child calls for the development of an appropriate parenting plan which reflects the child’s physical and psychological development.

In early Texas common law, the husband was the absolute guardian of children in the family. Fathers had the final say and had the right to custody of their children. In the 19th century, American courts began to take into account the age of the child, parental conduct, and gender roles. With this development came the assumption that mothers were biologically more suited to raise young children.  By the early 20th century, this social convention developed into a rigid legal presumption – the maternal preference, also known as the “tender years” doctrine. This presumption was among the first to attempt to give legal recognition to the importance of age and the developmental needs of children.  Today, the tender years doctrine has been eroded. By eliminating the legal presumption favoring mothers as the custodial parent for infants and young children, courts have attempted to put parents on equal footing so that their contributions to the child’s needs, regardless of gender, are among the mix of factors that are considered in producing a decision that is truly in the child’s best interest.

The modern legal standard of the best interest of the child is subjective and indeterminate. A court’s discretion is bounded only by two amorphous legal principles: “Their decisions must be in the best interests of children and must give effect to the legal rights of non-custodial parents to form or maintain relationships with children.”

Not surprisingly, the best interest of the child standard has been widely criticized as giving too much deference to the subjective values of the judge, which may be influenced by the judge’s age, social standing, and family situation, among other factors. In essence, the judge is the ultimate guardian in doing what is best for the child.

  • The factors to be considered in this analysis include:
  • The desires of the child;
  • 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;
  • The programs available to assist these individuals to promote the best interest of the child;
  • The plans for the child by these individuals or by the agency seeking custody;
  • The stability of the home or proposed placement;
  • The acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and
  • Any excuse for the acts or omissions of the parent.

While the above list is not exhaustive, it provides a number of considerations which either have been or would appear to be pertinent in issues of child conservatorship and access. The best interest standard has been defended as facilitating individualized determinations tailored to the needs of each child.