In my previous post I talked about the various terms used in Texas courts regarding child custody. I also stated that the best interest of the child is the first priority for any Texas court presented in a conservatorship and/or possession determination. In this post, I’ll continue our discussion by looking at the factors courts consider in determining what is in the best interest of a child (i.e., the Holly Factors).
The first main category a court will assess is the parent’s ability to care for the child. Generally speaking the following seven factors are frequently considered:
- Which parent will best provide for the child’s physical, psychological, and emotional needs now and in the future?
- Does either parent pose any physical or emotional danger to the child now or in the future?
- Which parent will present the most stability for the child?
- What are the parents’ plans for the child?
- What level of cooperation exists between the parents?
- What are the parenting skills of each parent?
- Which parent was the child’s primary caregiver before the divorce was filed?
The second main category to be assessed is maintaining family relationships. Generally, the following six factors are considered:
- The child’s desires (if the child is 12 years of age or greater)
- The geographic proximity of the parents and other family members
- If divided or split conservatorship is requested, the court can consider what effect separation would have on the siblings
- The extent to which each parent can encourage and accept a positive relationship between the child and the other parent
- Whether any parent ever knowingly made a false report of child abuse
- Whether there is a need for measures to protect the child from being abducted to a foreign country.
The last main category deals with parental fitness. In this category there are mandatory factors and optional factors the court considers. The three mandatory factors are:
- Whether there is any credible evidence of a history or pattern of past or present child neglect or physical or sexual abuse by one parent against the other, a spouse, or a child
- Whether there is any evidence of the intentional use of of abusive physical force by a parent against the other or any person under 18 years of age that is committed while the suit is pending or in the two years before the suit was filed
- Whether there has been a commission of family violence
The following are optional factors for the court to consider as they relate to the parties to the suit:
- Each parent’s present fitness to care for the child (including recent past conduct that is a reasonable predictor of current fitness)
- Whether either parent has a drug or alcohol problem
- Whether either parent’s sexual conduct renders that parent unfit to act as a parent (for example, if a parent has pornography that is accessible to the child)
It is also a comfort to a lot of our clients that the court can NOT consider the following factors:
- Martial status (although a parent’s marital status cannot be used by itself to determine who should be appointed as the child’s conservator, court’s can consider a parent’s marital stability)
- Gender
- Race
- Religion (except if the religion requires the parent to engage in illegal, immoral or harmful activities).
Although this may seem like a short list of factors, there are several nuances to each factor listed. Now that we have the basic terms down and an understanding of what the Holly Factors are, in my next post I’ll discuss the presumptions that apply is conservatorship determination and how they impact a party’s desire for "sole custody."