As a practicing Texas lawyer, I see lots of different kinds of Family Law cases. And while a relative few of them may not involve children (such as in some divorce cases), the majority of the Family Law cases that are filed DO involve children, in one way of another. At the heart of most of those cases is the determination of who is going to primarily raise the children. They are child custody cases, even if paternity, child support, residence restrictions, or other factors are also involved.

Of course, these are important cases. And, often one side or the other feels as though he or she won, and another party feels as though he or she lost. Often, the welfare of the children hang in the balance. So, how are these cases decided?

Best interest

According to the Child Welfare Information Gateway, part of the U.S. Department of Health & Human Services, “All States, the District of Columbia, American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands have statutes requiring that the child’s best interests be considered whenever specified types of decisions are made regarding a child’s custody, placement, or other critical life issues.” So, this is what courts look for in these types of cases. How do they determine which orders are in children’s best interest?


Courts, such as the ones in which I practice, may have formal criteria for determining the best interest of children. Those criteria may be elements such as:

  1. the desires of the child
  2. the emotional and physical needs of the child now and in the future
  3. the emotional and physical danger to the child now and in the future
  4. the parenting abilities of the individuals seeking custody
  5. the programs available to assist those individuals to promote the best interest of the child
  6. the plans for the child by these individuals or by the agency seeking custody
  7. the stability of the home or proposed placement
  8. the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one
  9. any excuse for the acts or omissions of the parent

These criteria, are not listed by area of importance. And, this list is not exhaustive, since each individual case will have certain factors that are more important than others. Courts consider all relevant evidence about what is best for the children in the case before them. And, those courts have broad discretion in making the determination of what is in the child’s best interest.

What NOT to do

While your case is ongoing, the courts will strongly consider any negative behavior by the parties in making the best interest determination concerning children. Emotions often run high during these periods, and people, sometimes, don’t fully think through the consequences of their actions. I have written about the things to avoid doing during your child custody case (How to Easily Lose Your Child Custody Case and How to Avoid It) Make sure that you do not engage in any of those behaviors.


As a party with a child custody case, it is your job, and the job of your attorney, to provide the necessary information to the Judge so that the court can make the determination of what is in your child’s best interest. This is done by your taking the time to think through the criteria listed above; writing down the facts in your circumstance that apply to those criteria, along with other important facts that the Judge should hear about. Your attorney’s job, then, is to gather and organize the evidence showing those facts; and then, to present that evidence to the court in the most persuasive manner. That is how child custody cases are won.

Additional Information

I plan to write additional pieces about the kinds of evidence that can be used to show the 9 criteria listed above. For now, going over that list, and discussing it with your lawyer, is a great starting point for getting your child custody case ready to win. Good luck!

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