It’s a given – as parents we want what is best for our child. I’m a parent, and I believe I am the ONLY person who knows what my kids needs and what is best for them (we won’t talk about the fact that my “children” are 28 and 24 – that’s a completely different topic.)
I’m Right and You’re Wrong
When parents can’t agree because they each have different beliefs about what is right and best for their child, the Judge makes decisions for them and for the child. Ironically, at that point, both parents lose complete control of the situation because a third party (the Judge) is going to make decisions regarding their child.
So, how does a judge, who has never met you, your spouse, or your child decide what is best? What does a judge look at when making rulings about conservatorship, possession, and support? (Let me assure you that most, if not all, of the Judges I know are thoughtful, concerned, well-intentioned, knowledgeable, and extremely smart. Although I may disagree with a ruling, in my experience each Judge makes decisions after listening closely to the evidence and carefully considering what is best for the child.)
Facts vs. Beliefs/Feelings
You are not going to like this, but there is a difference between feelings/beliefs and facts. Fact – your child failed English. Feeling – mother is to blame for the child failing English. When you say you are “right” and he is “wrong” – you are expressing your feeling and not a fact. I know this is horribly distasteful, but the distinction is important.
Feeling Becomes a Fact
Each case is different, but part of your lawyer’s job is to help you convince the Judge that your feelings are fact and that you know what is best for your child. You do so by introducing evidence which supports your feeling.
The “fact” is your child failed English. You “feel” it is Mom’s fault the child failed English. To prove your feeling is a fact, you introduce the following hypothetical evidence:
- English is the child’s first class of the day
- Child was late to school many times and sometimes entirely missed the first class of the day
- Mother took the child to school each day
- Mother did not respond to the teacher’s numerous emails about the child not turning in work and falling asleep in class.
- Mother allows the child to set his own bedtime and does not check on the child to see that he is asleep
Gold Standard – Best Interest of the Child
The best interest of the child is the guiding principal behind and the standard for making decisions regarding a child. After hearing the evidence and observing the witnesses, the Judge makes decisions which best provide for and foster the child’s happiness, security, mental health, and emotional development under the facts of that particular case. In Texas, generally, it is in the child’s best interest to have a good relationship with and frequent contact with both parents.
Evidence of Best Interest
The Court looks at many factors in deciding what is in the child’s best interest. In my opinion the following absolutely is not an exhaustive list, but does contain some of the evidence a Court may consider in making decisions about the best interest of the child:
- Emotional, educational, medical, physical, and basic needs of the child – which parent is better able to identify, understand and meet those needs (which are different and change depending upon the age of the child)
- Stability – which parent has been the primary caretaker of the child. Courts want the children to be affected as minimally as possible by divorce.
- Safety – is domestic abuse present? Does either parent use alcohol to excess or drugs while in possession of the child? Does either parent allow the child to be in the presence of a registered sex offender or a person who uses drugs? Does either parent operate a motor vehicle while intoxicated while the child is passenger in the vehicle?
- Mental and physical health of the parent – Does either parent have mental or physical health issue which affects his ability to care for the child?
- Emotional Ties – What is the relationship between the child and each of her parents? Why does the child not want to spend time with her father?
- Alienating Tactics – does one parent talk about the litigation with the child? Does one parent share details of an affair which led to the breakup of the marital relationship? Does one parent say derogatory things about the other parent to the child? Does one parent hide the child from the other parent?
- Child’s Wishes – what does the child want? This factor is extremely dicey and should be approached with great caution and finesse. When the child is asked about his or her desires, the child is placed in the middle and is required to choose between parents. Moreover, although children are very smart, they do not understand adult situations and are not able to comprehend what is in their best interest. The age and maturity of the child are huge components of this factor.
Cost of Being Right
In closing, the general consensus is that usually a child’s best interests are best served when parents are able to work together and make joint decisions for the child. This is not because Judges are not capable, but because in a trial each parent’s goal is to prove “I am right, and you are wrong.” To prove he or she is right, each parent is going to sling a lot of mud at the other, which will increase the animosity, anger, and hostility between them. Parents spend years resolving these emotions, which invariably trickle down to your child, and your child will most likely suffer as a result. With this in mind, I encourage you to think carefully before you back yourself into the righteous corner, put on your gloves, and come out swinging.