“Best Interest” Should Not Become a Substitute for Evidence

One of the most important reforms needed in family court is greater clarity about the difference between considering a child’s best interest and assuming facts that have not been established by reliable evidence.

The phrase “best interest of the child” is fundamental to family law. But it should not become a blank check that allows a parent’s relationship with their child to be restricted based on speculation, assumptions, or the mere possibility that something may have happened.

A court should be able to explain what evidence supports a restriction on a parent’s relationship with their child.

“Something might have happened” should not automatically become “something did happen.”

An allegation is not the same thing as evidence.
A suspicion is not the same thing as a finding.
A possibility is not the same thing as proof.

When a parent’s fundamental relationship with their child is being restricted, the seriousness of that decision demands more than assumptions. It demands a fair process and an evidentiary foundation appropriate to the rights at stake.

The Texas Supreme Court has recognized that due process protections become especially important when government action substantially interferes with the fundamental parent-child relationship. In circumstances involving significant restrictions on parental contact, the Court has required heightened evidentiary protection. (Texas Courts)

The best-interest standard should therefore be applied after the relevant facts have been fairly established—not as a substitute for establishing those facts.

Courts should not be able to say, in effect:

“We don’t know whether it happened, but because it might have happened, we will restrict the parent’s relationship with the child.”

Instead, the process should ask:

What actually happened? What evidence establishes it? What evidence contradicts it? What findings can reasonably be made from the evidence? And what restriction, if any, is actually necessary to protect the child?

Protecting children and protecting due process are not opposing goals.

A fair system should be capable of doing both.

When restrictions are necessary to protect a child, they should be supported by evidence and tailored to the circumstances.

When allegations are made but cannot be substantiated, that uncertainty should not automatically be converted into a permanent or unnecessarily severe restriction on a parent’s relationship with their child.

And when an allegation is proven to have been knowingly false, the system should have meaningful mechanisms for accountability.

Family courts have enormous authority over the lives of children and parents. With that authority comes an enormous responsibility to distinguish facts from allegations, evidence from assumptions, and legitimate safety concerns from speculation.

That is the standard families deserve.