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.
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