Parenting Plans and the Best Interest Standard

The “best interest of the child” is today’s guiding principle in 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”; that is, a custody arrangement that reflects the child’s physical and psychological development.

As a result of a better understanding of the needs of children, child custody law has evolved into what we have today. In early 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. Some of my clients believe this to be the case today. 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. The judge will act as the parent’s patriae (ultimate guardian) in doing what is best for the child. 

The best interest standard has been defended as facilitating individualized determinations tailored to the needs of each child.

What are the chances a father will be awarded primary custody of his child?

Texas law presumes that awarding the parents joint custody of the child is in the best interest of the child. The question above speaks to a father’s chances of obtaining the right to determine the primary domicile of the child, which is known informally as “primary custody”. In making its determination, the court will identify the primary caretaker of the child during the marriage. What are the living arrangements now? Who is putting the child to bed, taking him to the doctor, making dinner, involving the child with appropriate people, and so on?  The courts tend to lean toward mothers in deciding custody of younger children, but men are gaining ground in custody battles where it is shown that they are attentive nurturing parents. However, a father’s chances are not easy because most courts give preference to the mother.

Under the common law, the age and sex of the child were always relevant in determining a child’s best interest. Age, however, is specifically mentioned in only a few statutes.  Children’s stated wishes must be carefully assessed by examining factors such as the child’s age, development, and personal characteristics, as well as the possible demands of parents which may be skewing the child’s expression of his or her own best interest.

The bottom line is that courts will look to the “best interests of the child” in determining primary conservatorship. Parents should endeavor to develop a finely-tuned custody plan that both parents and the court system can embrace.