Deciding Conservatorship (Custody)
The best interests of the child is the court’s primary consideration when deciding conservatorship (custody), possession, and access to children. O’Connor’s Texas Family Law Handbook, 410 (2010).
Custody suits focus on who can better serve the best interests of the child. Id. There are certain factors the court can consider when appointing conservators. The Texas Supreme Court has identified a nonexclusive list of factors a court can consider when deciding what is in the child’s best interest. Id.
- (1) Physical and emotional needs. The court can consider which party will best provide for the child’s physical, psychological, and emotional needs and development now and in the future. Id.
- (2) Physical and emotional danger. The court can consider whether either party poses any physical or emotional danger to the child now or in the future. Id.
- (3) Stability of home. The court can consider the stability of each party’s home. Id.
- (4) Plans for child. The court can consider each party’s plans for the child. Id.
- (5) Cooperation between parents. The court can consider each party’s ability to give the child first priority and reach shared decisions in the child’s best interests. Id.
- (6) Parenting skills. The court can consider each party’s parenting skills. Id at 411.
- (7) Primary caregiver. The court can consider which party was the child’s primary caregiver before the suit. Id.
- (8) Child’s preferences. The court can consider the child’s wishes. Id.
- (9) Geographic proximity. The court can consider where the parties reside in relation to each other. Id. Geographical proximity of the parties is important because distance complicates decisions about schools, after-school activities, health care providers, and other daily issues. Id.
- (10) Siblings. If divided or split conservatorship is requested, the court can consider what effect separation would have on the siblings. Id. Children of the marriage, especially young children, should usually not be separated unless there are clear and compelling reasons to do so. Id.
- (11) Promoting relationships between child and other party. The court can consider the extent to which each party can encourage and accept a positive relationship between the child and the other party or parties. Id. at 412
- (12) False report of child abuse. The court can consider whether either party ever knowingly made a false report of child abuse. Id.
- (13) International child abduction. The court can consider the need for measures to protect the child from being abducted by a parent to a foreign country. Id.
- (14) History or patter of abuse. The court must consider any credible evidence of a history or pattern of past or present child neglect or physical or sexual abuse by one parent directed against the other parent, a spouse, or a child. Id.
- (15) Intentional use of abusive physical force. The court can consider any evidence of the intentional use of abusive force by a party against the party’s spouse, a parent of the child, or any person under 18 years old that is committed while the suit is pending or in the two years before the suit was filed. Id.
- (16) Family violence. The court must consider the commission of family violence. Id.
- (17) Present fitness and recent past conduct. The court can consider each party’s present fitness to care for the child. Id. at 413. If a party is presently suitable as a conservator, the fact that there was a time in the past when the party would not have been suitable is not controlling. Id. However, the court may consider a party’s recent past conduct as a reasonable predictor of the party’s behavior and fitness in the future. Id.
- (18) Drug or alcohol abuse. The court can consider whether either party has a drug or alcohol problem. Id. A party may be denied managing conservatorship based on recent drug or alcohol abuse. Id.
- (19) Sexual conduct. The court can consider whether either party’s sexual conduct renders that party unfit to act as a parent. Id. A party’s sexual conduct is relevant only if the child was exposed to it or had access to evidence of the conduct. Id.
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