Category Archives: Holley Factors

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.***