DivorceMag: How do Courts Determine ‘Best Interest’ in suits affecting .........

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Frequently Asked Questions about Divorce in Texas

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Note that answers given in this section cannot take the place of independent legal or financial advice. Please read our disclaimer.

"How do Courts Determine ‘Best Interest’ in suits affecting the parent-child relationship?"

Judges have a great deal of discretion in determining best interest on a case by case basis. That discretion is not, however, without guiding precedent. In 1976, the Texas Supreme Court decided the case of Holley v. Adams, a suit for termination of parental rights. Holley v. Adams, 544 S.W.2d 367 (Tex. 1976). The Court set out what have come to be known as the “Holley factors,” a non-exclusive list that courts use to determine the best interest of a child. Holley factors can include:

the desires of the child
the emotional and physical needs of the child now and in the future
the emotional and physical danger (of one parent) to the child now and in the future
the parental abilities of the individuals seeking custody
the programs available to assist the parents
the plans for the child by these individuals
the stability of both parties’ homes acts or omissions of a parent which may indicate that the existing parent-child relationship is not a proper one, and
any excuse for the acts or omissions of a parent.

Holley was a suit for termination, but these factors are instructive in a suit for conservatorship or parenting time. A parent seeking primary conservatorship might provide the following types of evidence in support of his case:

which parent will best provide for the child’s physical, psychological, or emotional needs and development now and in the future — which parent makes meals for the child, does the laundry, helps with homework, attends parent-teacher meetings, etc.
the parent’s plan for the child, both short-term and long-term
the parent’s ability to cooperate with the other parent, encourage the relationship with the other parent, and reach shared decisions
the geographic proximity of the parties to each other as well as to the child’s school, extracurricular activities, health-care providers, and other daily needs
whether one parent is asking to divide the siblings, as the courts normally frown on such arrangements
the child’s relationship with half- and step-siblings
recent past conduct, such as voluntarily leaving the children with others, that does not indicate a willingness of the parent to consider the child’s needs first, as a predictor of future parental fitness.

Factors that Courts Won’t Care About
Custody suits are among the most contentious interactions that people can have, and there are some issues that courts will simply refuse to consider, regardless of how relevant they may be to the adults. Most of these issues involve the personal conduct of the other parent.

Infidelity: Frequently, a divorcing parent will want to raise an issue about the other parent’s infidelity during the marriage as a basis for denying conservatorship to that parent. The parent will say, “She cheated on me, so I want to have ‘full custody’ of the kids!” Generally speaking, a spouse’s misconduct in a marriage will only be relevant to a suit for conservatorship if a link can be shown between the misconduct and the children. “A bad wife does not necessarily make a bad mother,” is the modern viewpoint. So, where a spouse is unfaithful, but the children have no knowledge or awareness of the situation, it is not likely a relevant factor in the suit for conservatorship. On the other hand, behaviour that directly impacts the child could make a difference. Examples could include: taking the child on dates before the divorce filing, leaving a child unattended while being intimate with a third party, or keeping pornography where the child could see it.

Marital status: A court cannot discriminate against one parent because he or she is not married or is divorced.

Gender: Since 1976, there is no longer any presumption in the law that a mother is a better parent to raise a child, nor is either parent held to a higher standard of parental fitness than the other.

Racial issues: A court cannot discriminate against one parent based on his or her race or ethnicity. The United States Supreme Court has also held that a court cannot consider private racial biases and the possible injury they might inflict on a child in matters of conservator ship.

Religion: Religious beliefs or practices are normally not a proper consideration in a suit for conservatorship, even if the beliefs are unusual. Such beliefs can only be a relevant factor in determining a child’s best interest if the beliefs could be illegal, immoral, or harmful to the child.

Best Interest Can Override Other Factors, including Biology

The case of Mumma v. Aguirre provides insight into how courts apply the best interest standard. Estella was born to Pedro and Cecilia while Pedro was married to Anna. Cecilia gave up five-day-old Estella to Pedro at the urging of her priest. Pedro took Estella home to Anna, told Anna the child’s mother was dead, and told Anna she had to accept the child, or Pedro would leave with the child. Anna accepted the child as her own and kept Pedro around too.

During the 2½ years after the divorce from Anna, Pedro introduced Estella to Cecilia during his visitation. Pedro and Cecilia amended Estella's birth certificate to change her last name from Cecilia's unmarried name (Garcia) to Pedro’s last name (Aguirre). After five years, Anna filed for divorce from Pedro because he started seeing Cecilia again and had another baby with her. Pedro and Anna's divorce awarded Anna custody of the three children between Pedro and Anna, as well as Estella with Pedro having a right of visitation. Pedro filed to modify his divorce decree to give custody of Estella to himself and Cecilia.

The trial court weighed heavily all of the competing interests and decided to leave custody with Anna and allow Pedro and Cecelia visitation. Upon review, Texas Supreme Court Chief Justice Calvert balanced the normally inviolate right of “natural parents” to have custody of their children against the right of the child to stability and ultimately weighed in favour of the child’s stability, both with Anna and with her half-siblings, with whom she had been reared.

Michelle May O'Neil, president of O'Neil Attorneys and a Certified Family Law Specialist by the Texas Board of Legal Specialization, is nationally recognized as a leader in family law. She focuses on child-custody disputes, complex marital-property litigation, and family-law appeals. May also acts as a mediator for other attorneys in resolving family-law disputes.

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