Law Office of Michael G. Diaz, P.C.
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Providing Personalized Counsel for a Positive Future
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In my last article, I discussed Texas House Bill 453, and the way it would attempt to change the decision making process as it relates to a judge’s child custody decisions. I mentioned that the “best interest” of the child is always the key consideration for courts. Texas Family Code Section 153.002 states “the best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.
But what exactly is “best interest of the child” and what goes into a court’s consideration of best interest. The leading case on this issue is Holley v. Adams, 544 S.W.2d 367 (Tex. 1976). The Holley case sets forth nine factors to be “considered by the courts in ascertaining the best interest of the child.” Those factors include:
1. the desires of the child;
2. the emotional and physical needs of the child now and in the future;
3. the emotional and physical danger to the child now and in the future;
4. the parental abilities of the individuals seeking custody;
5. the programs available to assist these individuals to promote the best interest of the child;
6. the plans for the child by these individuals or by the agency seeking custody;
7. the stability of the home or proposed placement;
8. the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a property one; and
9. any excuse for the acts or omissions of the parent.
However, the Holley court goes on to say that the above factors are “by no means exhaustive, but does indicate a number of considerations which either have been or would appear to be pertinent.”
When custody is at issue it is essential to that you understand these factors and how they go into the best interest of the child standard. You and your attorney should discuss the factors and strategize how each of them fits the unique circumstances of your case.
There is currently a bill in the Texas Legislature, Texas House Bill 453 which aims to promote equal custody to parents in a divorce.
Currently, the Texas Family Code mandates that the “best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.” Court are given discretion to decide what type of visitation plan is best based on the specific circumstances of the parties.
Texas House Bill 453 would change that by saying when parents are named joint managing conservator “the court shall enter a possession order.. .that provides for equal parenting, unless the court determines that the order is not in the best interest of the child…”
It may seem like a small change in the language, but it aims to make equal custody the default position in a divorce instead of what the judge decides is in the best interest of the child. The concerns about the bill seem to be whether it will overly limit the discretion of a judge to evaluate the specific circumstances of a given case. Additionally, the bill doesn’t say what “equal parenting” is. Does that mean divide the week in half, alternating weeks, or some other schedule? The bill doesn’t define the term.
It will be interesting to see what kind of opposition and support this bill receives moving forward. A copy of the bill can be seen here: http://www.legis.state.tx.us/tlodocs/85R/billtext/html/HB00453I.htm .
If spouses in a divorce or parents in a custody suit are unable to reach agreements on property or custody issues and a court hearing becomes necessary, there are few things to keep in mind for when you go to court.
First, look over any notes you may have regarding events that have taken place during the relationship. Make a timeline to remind yourself of key dates. Review any letters or emails you have from your attorney and look over any texts from the other party regarding key issues. In Collin County, temporary order hearings are limited to 20 minutes per side so if you can readily testify as to dates and events then it will help your case.
Stay in communication with your attorney. If you have questions about what will happen during the hearing set up a conference with your attorney so you know both of you are on the same page. Ask your attorney if there are any specific events or issues you should be prepared for.
While in court, always be respectful of the judge and other court personnel. Dress appropriately, and turn off all cell phones while inside the courtroom. When testifying, always be truthful and don’t try to argue with the opposing attorney or engage in actions such as rolling your eyes. You want to avoid being excessively emotional. If an objection is raised wait for the judge to rule on the objection before answering.
When in court you want to be able to quickly and clearly present your side to the judge. This makes it more likely that the court will award you the relief you are seeking.
Michael Diaz is a Divorce and Family Law attorney in McKinney, Texas.
Providing effective and efficient solutions to Divorce, Custody, and Family Law clients in McKinney, Frisco, Allen, Plano, Melissa, Princeton, Prosper, Fairview, Celina and throughout Collin County.
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