Monthly Archives: March 2015

March 16, 2015

Part 2: Breaking Down the Best Interest of the Child – The Child’s Desires

iStock_000048065648SmallAs mentioned last week, over the next nine weeks I will address the nine factors that the Texas Supreme Court provided for consideration when determining the best interest of a child.  Holley v. Adams 544 S.W.2d 367, 371-72 (Tex. 1976).  The first factor is the desires of the child.  Two questions come to mind with this factor: (1) how is a court to know the child’s desires, and (2) how much weight does the Court give to said desires?

(1)  Court’s Knowledge of Child’s Desires

A court may learn of a child’s desires by interviewing the child in chambers on issues related to (a) which conservator has the exclusive right to designate primary residence, (b) possession, (c) access, and/or (d) any other issue in a suit affecting the parent-child relationship.  See Section 153.009 of the Texas Family Code.

Under Section 153.009, a party to a lawsuit, an amicus attorney, an ad litem attorney for the child, or the court itself may move for a judge to interview a child in chambers.  This request can be made by filing a motion, or at a nonjury trial or hearing.  If a child is twelve years old or over, a judge must interview the child.  If a child is under twelve years old, it is up to the discretion of the judge whether to conduct the interview.

But where an issue has been previously submitted to a jury, a judge may not interview the child. And, although a court may consider a child’s desires expressed in an interview, the interview does not diminish a court’s discretion in determining the best interest of a child.

(2)  Weight Given to Child’s Desires

There is no bright-line test for the weight in which a court will give to a child’s desires.  A court has wide latitude in considering a child’s desires.

For example, in In the Interest of M.A.S., the Court gave much weight to the child’s desires.  In that case, a fifteen year old filed a written statement with the court stating his preference for his father to have the exclusive right to designate primary residence.  In the Interest of M.A.S., 233 S.W.3d 915, 921 (Tex. App. – Dallas 2007) (pet. denied).  Ultimately, the 5th Court of Appeals of Texas determined the child’s written statement “alone was sufficient to support… modification” and granted the father the exclusive right to designate primary residence.  Id.

Conversely, in In the Interest of A.C., a Child the 6th Court of Appeals of Texas stated a court “may choose either to take into account the information learned at such an interview or ignore it in its entirety.”  In the Interest of A.C., a Child, 387 S.W.3d 673, 677 (Tex. App. – Texarkana 2012) (rev. denied).

Conclusion

If a child’s desires are relative to the determination of family law issues, it is important to inform the court of those desires by requesting an interview with the child in chambers.  However, other evidence supporting the child’s desires should be made available to the Court.  In other words, sole reliance of one’s position in a family lawsuit should not be placed on an interview with a child of the lawsuit.

 

***This blog is not legal advice, nor does it constitute an attorney-client relationship with the recipient.  If you are facing a family law matter, please contact a licensed attorney.***

March 7, 2015

Part 1: Breaking Down the Best Interest Standard – The Holley Factors

In my March 15, 2013 blog, “Best Interest of the Child” Standard – What Does It Really Mean?, I provide a broad overview of the best interest standard used by Texas courts in resolving issues of conservatorship, possession of, and access to a child(ren) in family law matters.  Although Section 153.002 of the Texas Family Code sets the standard, Texas case law guides courts on how to apply it.  The precedential case relied on by Texas courts in applying the best interest standard is Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).

Holley provides nine factors for courts to consider when determining best interest of a child.  As the Fifth Court of Appeals of Texas states in Fair v. Davis, “weighing or taking into account ‘best interest’ is different from requiring an affirmative finding of ‘best interest’.”  Fair v. Davis, 787 S.W.2d 422, 428-29 (Tex. App. – Dallas 1990, no writ).  Thus, the question becomes how do Texas courts weigh or take into account each factor?  

Over the next nine weeks, I will discuss the Holley factors individually and review current case law guiding Texas courts.  The Holley factors are: (1) desires of the child, (2) emotional and physical needs of the child now and in the future, (3) emotional and physical danger to the child now and in the future, (4) parental abilities of the individuals seeking custody, (5) programs available to assist the parties/conservators/agency to promote the best interest of the child, (6) plans for the child by the parties/conservators/agency seeking custody, (7) stability of the home or proposed placement, (8) acts or omissions of the parent which may indicate that the existing parent-child relationship is improper, and (9) any excuse for the acts of omissions of said parent.

When a family law matter involves a child(ren), a comprehensive understanding of the legal best interest standard, as well as the Holley factors, is essential to the outcome of the matter.  It is my goal to provide you with information to better understand that standard.  In the meantime, if you have a family law matter involving a child(ren), I encourage you to seek legal counsel.  When it comes to one’s child and a determination of what is in his or her best interest, there is no room for error.