In Texas, family law attorneys are keeping a watchful eye over the current state legislative session. The proposal of Senate Bill 816, would include language concerning the wishes of the parent when courts issue a ruling in the best interest of a child. Senate Bill 816 goes hand in hand with the proposed House Bill 453 regarding equal parenting(LINK). Currently, Texas case law has not developed a precise definition or complete list of factors other than “Best Interest of a child”. The closest that a Texas Court has come to developing a definition was in the case Holley v. Adams, 544 S.W.2d 367 (Tex. 1976). The factors considered by the court in determining the best interest of a child were:

1. Desires of the child;

2. Emotional and physical needs of the child;

3. Any emotional or physical danger to the child now and in the future;

4. Parenting ability of the person seeking custody;

5. Programs available to assist in promoting the best interest of the child;

6. Plans for the child;

7. Stability of each home; and

8. Any acts or omissions of the parent.

There is no provision regarding the wishes of the parent. A court can issue a ruling that is against the wishes of either parent as long as the ruling is in the best interest of the child. The proposed bill seeks to add specific language to to include the parent’s wishes. Let us take a look at the differences between the current law and the proposed law.

CURRENT

Sec. 153.002.  BEST INTEREST OF CHILD.  The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.

PROPOSED

              Section 153.002, Family Code, is amended to read as follows: 
 Sec. 153.002.  BEST INTEREST OF CHILD; DEFERENCE TO PARENT.
 (a)  Except as otherwise provided by this section, the [The] best
 interest of the child shall always be the primary consideration of
 the court in determining the issues of conservatorship and
 possession of and access to the child.
        (b)  The court may not render an order contrary to the
 expressed wishes of a child’s parent unless:
              (1)  the court determines that the parent is not a fit
 parent;
              (2)  the order conforms with the expressed wishes of
 the child’s other parent, who is a fit parent; or
              (3)  the order is a compromise between the expressed
 wishes of both parents, who are fit parents.
        (c)  For purposes of this section, a parent:
              (1)  is presumed to be a fit parent; and
              (2)  may be determined not to be a fit parent only if it
 is shown by clear and convincing evidence that the parent does not
 adequately care for the parent’s child.
  

This bill along with the equal parenting bill if passed will go into effect on September 1, 2017. If you are looking for a family law attorney, please contact the Brandy Austin Law Firm for your family law needs.

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