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.

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