Divorces involving children can quickly become some of the most emotional and complex cases in law. This article addresses both the procedural and substantive process of deciding the issue of child custody in a divorce.
Procedures for Deciding Child Custody In Divorce
First, let’s look at the procedural issues involved in deciding child custody.
It is common for divorce cases to end in a settlement between the parties.
That settlement may be through an informal process involving just the attorneys and clients.
Alternatively, a settlement may be reached through mediation which involves the use of a neutral third party.
If the parties do not reach an agreement, then the case will proceed to trial and a judge will decide the issue of child custody.
That is where the substantive law comes into play.
Best Interests of the Child Standard
Child custody decisions are governed by and based on what is in the best interest of the child or children involved.
Texas law specifically states that the best interest of the child shall always be the primary consideration in deciding issues of conservatorship as well as possession and access to the child.
This “best interests” standard has a long history in case law and applies in any number of situations.
The Holley Factors For Determining the Best Interest of a Child
So how does a judge determine what is in the child’s best interests? By evaluating a number of factors beginning with those that were set out in a 1976 Texas Supreme Court case titled Holley v. Adams.
These are the Holley Factors from that case:
- the desires of the child;
- the emotional and physical needs of the child now and in the future;
- the emotional and physical danger to the child now and in the future;
- the parental abilities of the individuals seeking custody;
- the programs available to assist these individuals to promote the best interest of the child;
- the plans for the child by these individuals or by the agency seeking custody;
- the stability of the home or proposed placement;
- the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and
- any excuse for the acts or omissions of the parent.
While this case involved a decision on terminating a parent’s rights, these factors are applied in determining the best interest of a child in a number of different contexts in family law.
For example, the best interest standard is used in an original divorce case as well as a modification of a prior divorce decree. A judge uses these factors in arriving in that decision.
Holley Factors Are Not Exhaustive
It is also important to note that the Holley factors are not an exclusive list. Courts are free to consider other evidence and factors in arriving at a decision on child custody in a divorce.
Additional factors a court may consider include:
- the relationship with and presence of extended family;
- the presence of friends;
- the presence of a stable and supportive environment;
- a parent’s improved financial situation and ability to provide a better standard of living for the child;
- the positive impact of a parent on the emotional and mental state on the child;
- a parent’s right to have regular and meaningful contact;
- the ability of the parent to relocate; and
- the ability of the parent to adapt his or her work schedule to the child.
Different Factors May Apply In Other Contexts
The Holley factors are not always used in making a decision based on the best interest of the child.
For example, if a judge must decide whether to joint conservators because there is no agreement between the parents, then there is another set of factors that the judge must consider.
The Texas Family Code provides that a judge may only order that the parents be appointed joint managing conservators if it is in the best interest of the child considering the following factors:
- whether the physical, psychological, or emotional needs and development of the child will benefit from the appointment of joint managing conservators;
- the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child’s best interest;
- whether each parent can encourage and accept a positive relationship between the child and the other parent;
- whether both parents participated in child rearing before the filing of the suit;
- the geographical proximity of the parents’ residences;
- if the child is 12 years of age or older, the child’s preference, if any, regarding the person to have the exclusive right to designate the primary residence of the child; and
- any other relevant factor.
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