Category Archives: Texas Family Code Standards

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.

March 15, 2013

“Best Interest of the Child” Standard: What Does It Really Mean?

If you are a party to a family law suit where a child is involved, such as a divorce or modification of a parent-child relationship, you have likely constantly heard the term “best interest of the child.”  Section 153.002 of the Texas Family Code 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.”

It is the platinum standard in all family law actions involving a child, but what does it really mean?

I frequently encounter a party to a family lawsuit who is frustrated with the legal process because what he or she thinks is in the best interest of the child is not what the court says is in the best interest of the child. What that party fails to understand is the end goal, if you will, of Texas family law courts.  The courts strive to assure the child has frequent and continued contact with both parents, is in a safe, stable, non-violent environment, and that both parents are encouraged to share in child-rearing responsibilities.

What does this translate to for a person involved in a family law suit?  In a nutshell it means that the court will prefer minimal contact between a parent, who may even be seen as less-than-desirable, and a child over no contact as long as the child is not in an environment where there is a possibility of suffering harm or injury.  Moreover, regardless if a non-custodial parent has paid the ordered child support, he or she retains their right of access and possession to the child.  If you are the custodial parent, it is not wise to directly or indirectly deny the non-custodial parent time with the child because they have not paid support – Texas courts do not view such behavior kindly.

Family law actions involving children are rarely easy and often evoke much emotion.  They tend to highlight the differences in parenting styles.  However, as challenging as it may seem, try to keep in mind that the courts aim to do what is best for the child.   And what Texas family courts view as best for the child is to have the opportunity to know both parents in a safe, stable, and non-violent environment, and for both parents to have the opportunity to raise the child.