Best Interests of the Child: When to Litigate, When to Settle
Only You Know Your Children Well Enough to Determine How to Strategize Child Custody Cases in Texas
Anyone who is perfect at parenting should polish their award. The rest of us need to practice our parenting skills as we wear hats of educator, leader, provider, and protector. If we find ourselves in a family law matter and must decide on divorce and custody strategy, we have already likely self-analyzed everything to the point we nearly freeze up.
After we hit that emotional wall it is time to admit we have the power and control over ourselves and we are going to do the best we can to be a good parent and shepherd our children through the process of divorce and custody, ideally unscathed. We need to know when to litigate and when to settle. Sometimes preparing for a knock down drag out is the best way to position ourselves to settle. Stay in the drivers seat, hold the cards.
Listen, Laugh, Learn - The Barrows Firm Law Review Podcast
Our Articles You Might Like
How to Tell Your Children About Divorce
Prioritizing Mental Health: How Collaborative Divorce Supports Emotional Well-Being
Texas Courts Make Determinations Based on the Best Interests of Children
If you and your opposing party are unable to agree on custody and parenting time and decision making, the Court will make determinations based on the options available in the Texas Family Code and local rules. One parent will be named the primary conservator with right to determine the child’s residence and the other parent will get possession time based on a standard schedule.
When custody is high conflict and both parents find themselves a primary parent, the Court will have a hearing and weigh evidence presented on the following “Best Interests of the Child” factors - Texas Family Code Chapter/Section 263.307:
- The child’s age and physical and mental vulnerabilities;
- The frequency and nature of out-of-home placements;
- The magnitude, frequency, and circumstances of the harm to the child;
- Whether the child has been the victim of repeated harm after the initial report and intervention by the department;
- Whether the child is fearful of living in or returning to the child’s home;
- The results of psychiatric, psychological, or developmental evaluations of the child, the child’s parents, other family members, or others who have access to the child’s home;
- Whether there is a history of abusive or assaultive conduct by the child’s family or others who have access to the child’s home;
- Whether there is a history of substance abuse by the child’s family or others who have access to the child’s home;
- Whether the perpetrator of the harm to the child is identified;
- The willingness and ability of the child’s family to seek out, accept, and complete counseling services and to cooperate with and facilitate an appropriate agency’s close supervision;
- The willingness and ability of the child’s family to effect positive environment and personal changes within a reasonable period of time;
- Whether the child’s family demonstrates adequate parenting skills, including providing the child and other children under the family’s care with: some text
- Minimally adequate health and nutritional care;
- Care, nurturance, and appropriate discipline
- Guidance and supervision consistent with the child’s safety;
- A safe physical home environment;
- Protection from repeated exposure to violence even though the violence may not be directed at the child; and
- An understanding of the child’s needs and capabilities; and
- Whether an adequate social support system consisting of an extended family and friends is available to the child.
January is International Child-Centered Divorce Awareness Month
When you read the list of all the Best Interest of the Child factors, you can imagine how many issues family lawyers might raise, when their client tells them those are exactly the concerns they are having about the other parent being the primary parent. In some cases where domestic and family violence charges are made, we get prepared for high conflict hearings and evidence to help the Court make the best decision, ideally in our favor.
Here’s the problem however, too often the battle is not actually rooted in one parent being better, it’s about the years of built up anger and resentment, just to begin the list. So when the custody battles appear as best interest of the child protectors, are they really, we must ask ourselves.
This January, a perennially busy time in divorce and custody courts, we see people ready to go to battle and build strategies to get custody and all the decision making. Here’s where we need to pump the breaks sometimes. At the Barrows Firm in Southlake, Leslie Barrows, has earned a local reputation for telling people the truth, and how things work in Court, and what to expect. She’s seen a thing or two, and a family or two, who claimed every move was in the best interests of the children, when it was really symptomatic of other conflict. Don’t drag kids through that.
Lexology Article: The Psychology of Settlement
Your Children May be Stronger Than You Realize
If you believe your children are going to suffer irreparable damage if you may be surprised how much they can handle. It is natural and right for a parent to maintain their ultimate sense of control and dominion over their child, and part of that process may be allowing your child to be tougher than you want to admit. Because if they’re tough, they don’t need our protection, if they don’t need our protection, are we just an ATM machine?
Let’s stop and recognize how stressful any divorce or custody matter is and our decision making might feel a little off, because no, this is not a normal routine situation when our families are involved. This however, does not mean we can let down the drama shield, and hopefully spare our children from being worried about whether we are going to be able to keep it together. It could be 10 or 20 years from now they tell you they think you handled everything well, and rest assured in the meantime that they know.
Psychology Today Article: Stop Working So Hard to Calm Your Kids
Find Strength in Restraint, Practicing Controlled Parenting
Be real, be authentic, and be strong. Moreover, be in control. Even if the other parent isn’t the one getting you fired up, their new lover just might. Or what happens when their new person has kids and they’re going to be mixed in with yours? We are abundant in opportunities to practice controlled parenting.
However we cope, we need to know when to hold ‘em, and know when to fold ‘em when it comes to family litigation. We will help you go to battle and stand on ten toes, but you also have to know when to spot your winning trajectory, get what you want, and get out. Settle the other stuff in compromise when you know what is most important to you, and it’s usually in that best interests of the child list.
Pick Your Battles and Pursue the Ones You Can Win
Are you worried if you don’t fight for something it looks like you rolled over and caved? Deep down that’s what worries people. But knowing what you are really able to do about it is another story. The money spent on fighting a hearing you may not be likely to win, that money could be spent taking your kids on vacation. That money could be spent on anything better than fighting in court.
So be mindful and be deliberate about what you are going to go for and don’t look back. And when your lawyer says now is the time to take your winning chips and go cash them in, listen to them.
Calculated Divorce and Child Custody with Attorney Leslie Barrows at The Barrows Firm in Southlake, Texas
Since 2006 the Barrows Firm has been shepherding families through the divorce and child custody process in Tarrant County and all over DFW. Leslie Barrows is well-connected in the high-net worth family law community she is a reliable source of all kinds of professional referrals in addition to advice and representation in the matters that affect your families. Contact Leslie at the Barrow Firm today! (817) 481-1583
