In the state of Texas, a family court’s paramount consideration is the best interest of a child. (Family Code section 153.002) But what does that really mean?
For a judge, a child’s best interests in a custody case examines which parent can best serve a child’s interests. For nearly 50 years, Texas Courts have relied upon what has become known as the Holley factors in determining which parent should have the exclusive right to designate the primary residence of the children. (Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.1976).
Holley Factors fall into three basic categories:
I. Caring for the Child
II. Maintaining Family Relationships
III. Parental Fitness
I. Who can Best Care for the Child [SHOULD be addressed]
a. Physical and emotional needs.
b. Physical and emotional danger.
c. Stability of home.
d. Plans for the child.
e. Cooperation between parents.
f. Parenting skills.
g. Primary caregiver.
II. Who can Best Maintain Family Relationships [SHOULD be addressed]
a. Child’s preferences if over 12.
b. Geographic proximity.
d. Promoting relationships between child and other party.
e. False report of child abuse.
f. [International abduction if applicable.]
III. Who is Most Parentally Fitness [MUST be addressed!!!!]
a. History of pattern of abuse. (Against one parent against other or child). [TFC 153.004(b) MUST be considered when determining appointment of JMC/SMC. TFC 153.004(e) MUST be considered when determining visitation.]
b. Intentional Use of abusive physical force. [TFC 153.004(a) MUST consider any evidence of intentional use of abusive physical force by a party against a parent, or any person under 18 years old committed while suit pending or in the two years before the suit was filed.
c. Family violence. TFC 153.004(c) MUST consider when determining restriction of possession by parent PC; TFC 153.004(d) MUST consider when determining P&A.
IV. What other Optional Factors? The following SHOULD also be considered.
a. Present fitness and recent past conduct, “any other relevant factor” TFC 153.134(a)(7).
b. Drug or alcohol use.
c. Sexual conduct. CAN be considered, “any other conduct”
V. What are the PROHIBITED FACTORS
a. Marital status.
e. Unusual or abnormal religious beliefs.
f. EXCEPT, a court can consider illegal, immoral, or harmful religious beliefs.
In every case, the two primary considerations for determining which parent should have the exclusive right to designate the primary residence are the child’s best interests (above, and Texas Public Policy).
- Child’s Best Interests: MANDATORY (TFC 153.002)
- Texas Public Policy: DISCRETIONARY: a) to ensure children will have frequent and continuing contact with parents “who have shown the ability to act in the best interest of the child,” b) provide a safe, stable, and nonviolent environment for the children, c) encourage parents to share in the rights and duties of raising their children after they have separated.
Knowing your county, your court, and the facts of your case are vital in helping a parent obtain their maximum rights and time with their children. With 24 years of legal experience, practicing exclusively in Harris/FortBend/Waller Counties, and as a mother of four children and a grandmother to one, I know how precious children and families are and how to show the court your strengths. Let us discuss the best interests of your children in your divorce or modification to help you preserve and protect your time and rights.