Nonexhaustive List of Factors the Court May Consider When Determining the Best Interests of a Child for Purpose of Appointing Primary Managing Conservator
A. Factors Based on Each Party’s Ability to Care for the Child
Petitioner and Respondent should address the following factors as they relate to each party’s ability to care for the child.
1. Physical and Emotional Needs – The court can consider which party will best provide for the child’s physical and emotional needs and development now and in the future.
“Father misused college funds.” Lide v. Lide,
“Mother’s behavior was detrimental to the child.” In Re R.D.Y.
“Children’s need for stability to adjust to change in family situation after divorce.” Albrecht v. Albrecht
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.
“Mother left children at pool and at boyfriend’s home with no parental supervision.” In Re A.A.M.
3. Stability of the Home – The Court can consider the stability of each party’s home.
“Father was awarded primary custody; mother had taken child to meet men she had met online and permitted boyfriend to spend night while child was in her custody in violation of court order.” Garcia v. Garcia
“Father was awarded primary custody; father intended to remain in same town where children currently went to school and where children’s relatives lived.” Avila v. Avila
4. Plans for the child – The Court can consider each party’s plans for the child.
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 interest.
“Parent was appointed Sole Managing Conservator because Joint Managing Conservator presumption was negated by parent’s deteriorating ability to cooperate.” Doyle v. Doyle
“SMC designation was in child’s best interest, in part because parties could not maintain a civil relationship for child’s sake.” Martinez v. Molinar
“JMC designation was upheld based on evidence that parties jointly cooperated and participated in caring for child.” Ray v. Burns
6. Parenting Skills – The Court can consider each party’s parenting skills.
“Father was appointed primary Joint Managing Conservator based on parenting skills, training, devotion and family support, along with Mother’s lack of family structure, quick temper, and relaxed parenting behavior.” Dennis v. Smith
“Nonparents were appointed as Joint Managing Conservator in part because they provided more stable home than mother.” Ray v. Burns
7. Primary Caregiver– The Court can consider which party was the child’s primary caregiver before the suit.
Nonparents were appointed as Sole Managing Conservator based on evidence that the nonparents had been the child’s sole caregiver for most of the child’s life.” In re K.R.P.
Grandmother was appointed Sole Managing Conservator based in part on evidence that she was the child’s primary caregiver before trial. Thomas v. Thomas
B. Factors Based on Maintaining Family Relationships
The Petitioner and Respondent should address the following factors as they related to how the family relationship can best be maintained.
1. Child’s preferences – The Court can consider the child’s wishes.
When a child over the age of 12 wishes to express a preference the court is mandated to listen to a child’s expressed preference as to with whom the child wants to reside. Tex. Fam. Cod § 153.009.
When a child is younger than 12 the court may listen to the child’s preferences in the court’s discretion.
2. Geographic Proximity – The Court can consider where the parties reside in relation to each other.
Geographic proximity is important because distance complicates decisions about schools, after school activities, health care providers, and other daily issues.
“Denial of Joint Managing Conservator was based on difficulty of joint parenting between parents living in Wisconsin and Texas.” In re Marriage of Bertram
Denial of Joint Managing Conservator was based on difficulty of joint parenting between parents living in Florida and Texas.” Doyle v. Doyle
3. Siblings – If divided or split conservatorship is requested, the Court can consider what effect separation would have on the siblings.
“Children of marriage-especially young children-should not be separated unless there are clear and compelling reasons to do so. In re De La Pena
“But Keeping siblings together is not a paramount concern when, for example, the parents have already voluntarily separated the children for a substantial period of time or have permitted a child to form familial relationships with nonparents and their children. In re J.M.W.
“Court allowed divided conservatorship when older sister elected to attend high school in father’s school district while younger sister remained with the mother.” Ditraglia v. Romano
“Court allowed divided conservatorship because mother was delusional and one of three children was ready to reconnect with father; children were separated only part of the week and were together every weekend.” Stoufflet v. Stoufflet
“The preference against divided conservatorship does not apply when the children are stepsiblings or half-siblings.” In re K.L.R.
4. 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.
“Neither party should vilify the other in the child’s presence, and the parties should not attempt to thwart visitation.” In re Marriage of Chandler
5. False Report of Child Abuse – The Court can consider whether either party ever knowingly made a false report of child abuse.
“If the party can provide a reasonable explanation for allegations of abuse, the report is not considered knowingly false.” In re De La Pena
“If the court finds that a report of child abuse is false, the court may restrict further access to the child by the person who made the false report.” Tex. Fam. Code § 261.107(b)
6. 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. Tex. Fam. Code §§ 153.501 – 153.503
C. Factors Based on Parental Unfitness
Petitioner and Respondent should address the following factors as it relates to each party’s fitness to act as a parent.
1. History or Pattern 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 the child. Tex. Fam. Code § 153.004(e)
2. Intentional Use of Abusive Physical Force – The Court must consider the intentional use of abusive physical 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. Tex. Fam. Code 153.004(a)
3. Family Violence – The Court must consider the commission of family violence (act by a member of a family or household that is intended to result in physical harm, bodily injury, assault, sexual assault or that is a threat that reasonably places the family or household member in fear of imminent physical harm, bodily injury, assault or sexual assault. Tex. Fam. Code. §§ 71.004(1), 153.004(d)
4. Present Fitness and Recent Past Conduct – The Court may consider each party’s fitness to care for the child.
- “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.” In re S.M.W.
- “Because parent had been clean and sober for over a year, evidence of drug use four years before was not enough to show unfitness.” In re S.W.H.
- “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. In re De La Pena
- “Mother’s past practice of voluntarily leaving the children to be cared for by others was a reasonable indication of her future conduct.” In re C.R.T.
- “Although father testified that he had been sober for two years, court found he was unfit because his past use and sale of drugs was indicative of conduct likely to continue.” May v. May
5. Drug or Alcohol Abuse – The Court may consider whether either party has a drug or alcohol problem.
“A party may be denied managing conservatorship based on recent drug or alcohol abuse.” In re C.R.T.
“Evidence of parent’s drug use four years ago was not enough to show unfitness.” In re S.W.H.
“Parent was denied Joint Managing Conservator based on evidence that children of alcoholics are more likely to become alcoholics themselves.” In re Walters
“Although father testified that he had been sober for two years, court found he was unfit because his past use and sale of drugs was indicative of conduct likely to continue.” May v. May
6. Sexual Conduct – The Court may consider whether either party’s sexual conduct renders that party unfit to act as a parent.
“A party’s sexual conduct is relevant only if the child was exposed to it or had access to evidence of the conduct.” Sharp v. Sharp
“Father’s sexual conduct was not relevant factor because although father had explicit videos, pictures, and varied sexual apparatus, child was not exposed to items, nor did the child have access to them.” Sharp v. Sharp
“Father’s sexual conduct was relevant factor because he kept pornography where the child could see it. Vela v. Vela
“Mother’s sexual conduct was relevant factor because she kept explicit videos and sexual conversations on computer where children had access to it.” Vela v. Vela
“Homosexual conduct should be considered no differently than heterosexual conduct.” (Child’s father and heterosexual aunt were appointed Joint Managing Conservators) In re De La Pena
D. Factors that the Court is Prohibited as Considering in Determining the Best Interests of a Child
The court is prohibited from considering the following factors.
1. Marital Status – The court cannot consider a person’s marital status (i.e. single, married or divorced.
2. Gender – The court cannot consider the gender of the parties or the child.
“There is no longer a presumption that the mother is the better parent to raise a child.” Dennis v. Smith
3. Race – The Court cannot consider a person’s race or ethnicity.
4. Religion– The Court generally cannot consider a person’s religious beliefs unless the person’s religious beliefs are illegal, immoral or harmful.
“Unusual or abnormal religious beliefs are not proper considerations when determining the appointment of a conservator.” (Mother was a Jehovah’s Witness) Alaniz v. Alaniz
“In appointing a conservator, a court cannot prefer religious beliefs of one party over another simply because one party’s beliefs tend to be more “normal” or are more in line with majority beliefs” In re Marriage of Knighton
“A party’s illegal, immoral, or harmful religious beliefs are proper considerations in determining the appointment of a conservator.” Frantzen v. Frantzen
“The decision of whether religious beliefs or practices are illegal, immoral or harmful should be left for the jury to decide by applying community standards.” Alaniz v. Alaniz
“When there is direct evidence showing that a person’s religious beliefs and practices may cause serious bodily or mental injury to the child or may cause the person to neglect the child, that evidence may be considered in appointing the person as a conservator.” In re Marriage of Knighton