So you want sole custody?? Part Two

In my previous post I talked about the various terms used in Texas courts regarding child custody.  I also stated that the best interest of the child is the first priority for any Texas court presented in a conservatorship and/or possession determination.  In this post, I'll continue our discussion by looking at the factors courts consider in determining what is in the best interest of a child (i.e., the Holly Factors). 

The first main category a court will assess is the parent's ability to care for the child.  Generally speaking the following seven factors are frequently considered:

  • Which parent will best provide for the child's physical, psychological, and emotional needs now and in the future?
  • Does either parent pose any physical or emotional danger to the child now or in the future?
  • Which parent will present the most stability for the child?
  • What are the parents' plans for the child?
  • What level of cooperation exists between the parents? 
  • What are the parenting skills of each parent?
  • Which parent was the child's primary caregiver before the divorce was filed?

The second main category to be assessed is maintaining family relationships.  Generally, the following six factors are considered:

  • The child's desires (if the child is 12 years of age or greater)
  • The geographic proximity of the parents and other family members
  • If divided or split conservatorship is requested, the court can consider what effect separation would have on the siblings
  • The extent to which each parent can encourage and accept a positive relationship between the child and the other parent
  • Whether any parent ever knowingly made a false report of child abuse
  • Whether there is a need for measures to protect the child from being abducted to a foreign country. 

The last main category deals with parental fitness.  In this category there are mandatory factors and optional factors the court considers.  The three mandatory factors are: 

  • Whether there is any credible evidence of a history or pattern of past or present child neglect or physical or sexual abuse by one parent against the other, a spouse, or a child
  • Whether there is any evidence of the intentional use of of abusive physical force by a parent against the other or any person under 18 years of age that is committed while the suit is pending or in the two years before the suit was filed
  • Whether there has been a commission of family violence

The following are optional factors for the court to consider as they relate to the parties to the suit:

  • Each parent's present fitness to care for the child (including recent past conduct that is a reasonable predictor of current fitness)
  • Whether either parent has a drug or alcohol problem
  • Whether either parent's sexual conduct renders that parent unfit to act as a parent (for example, if a parent has pornography that is accessible to the child)

It is also a comfort to a lot of our clients that the court can NOT consider the following factors: 

  • Martial status (although a parent's marital status cannot be used by itself to determine who should be appointed as the child's conservator, court's can consider a parent's marital stability)
  • Gender
  • Race
  • Religion (except if the religion requires the parent to engage in illegal, immoral or harmful activities).

Although this may seem like a short list of factors, there are several nuances to each factor listed.  Now that we have the basic terms down and an understanding of what the Holly Factors are, in my next post I'll discuss the presumptions that apply is conservatorship determination and how they impact a party's desire for "sole custody." 



So you want sole custody?? Part One

As a Dallas divorce lawyer, I frequently have clients that come into my office wanting “sole custody.”  Custody is a term that means different things to different people.  In this series of blog posts, I’ll explain how “custody” is determined in Texas.  The first post in this series will define the words Texas courts use in determining custody issues. 

In Texas conservatorship is the term that equates with custody.  Chapter 153 of the Texas Family Code sets forth the framework for appointing individuals as conservators and granting rights of possession and access to a child. 

There are two types of conservators: managing and possessory.  Managing conservators are further divided into two sub-categories, sole and joint.  A sole managing conservator is a person that is granted exclusive rights to make decisions for the child.  A joint managing conservator is one of two people who share the rights and duties of a parent, even if the exclusive right to make certain decisions (for example, the place of the child’s primary residence) is awarded to only one person.  A possessory conservator is a person who is designated by the court as having a right to possession of a child under specified conditions, and who is authorized during their periods of possession to exercise certain rights of a parent.  A very common misconception regarding joint managing conservators is that each parent must have equal periods of possession.  Also, a possessory conservator can exercise his or her periods of possession to the exclusion of a managing conservator. 

Now that we have the basic definitions down, we’ll look at how a court determines the rights and duties of parents and the periods of visitation to the child.  From the get go, it’s important to understand that the best interests of the child is the most important factor the court looks at when deciding issues of conservatorship, possession and access.  To establish a child’s best interests, parents usually are required to present evidence showing who can better serve the child’s interests. 

Approximately 30 years ago, the Texas Supreme Court identified a non-exclusive list of factors the court will consider in determining what is in the child’s best interests.  These factors are commonly called the “Holly Factors” because of the name of the case they were identified in.  Generally, the Holly Factors fall into three categories: (1) caring for the child; (2) maintaining family relationships; and (3) parenting skills. 

In the next post, I’ll write about the specific items courts consider in assessing the three main Holly Factors.

Standards to modify custody.

In a recent opinion by the Dallas Court of Appeals, the Court held the trial judge did not err when he did not apply a domestic violence presumption in assessing child custody and did not record an interview with a child in the office outside the court room.  In the Interest of S.E.K. & H.A.K., No. 05-08-00858-CV, --- S.W.3d --- (Tex. App. - Dallas, Aug. 28, 2009)

In S.E.K. mother and father were divorced and were initially appointed as joint managing conservators for the children.  Several years after his divorce, father filed a law suit with the aid of his lawyer seeking to modify the custody determinations provided in his divorce decree.  In response, mother filed a counter-suit also seeking to modify the custody schedule.  Mother complained to the trial judge that father shouldn't have primary custody of the children because of prior allegations that he sexually abused the kids.  The trial judge (from Dallas) was presented with testimony from both sides and their expert witnesses and ordered: (1) father has sole custody of one child; (2) mother has sole custody of the other child; and (3) visitation of the children has to be supervised.  Mother was unhappy with the trial judge's ruling and appealed.

On appeal, mother argued the trial judge committed error by not noting on the record the allegations that father sexually abused his children.  Additionally, mother complained that the trial judge erred when he did not make a record of his interview with the couple's child in his office just outside the court room.  Both of mother's complaints arose under Chapter 153 of the Texas Family Code (which deals with the initial determination of custody and visitation).  

The appellate court noted that this case was not an initial determination of custody, but rather it was a modification case.  Because the case sought to modify a prior custody determination, the Court said that Chapter 153 of the Family Code did not apply but rather Chapter 156 controlled.  The appellate court went on to state that the Texas Legislature placed different standards in Chapters 153 and 156 and because of this, the law mother relied on did not apply.  In a modification suit, the main issues are whether there have been material and substantial changes which warrant a modification in custody and whether the proposed changes would be in the best interest of the child.    The main issues to be determined in an initial custody determination are different than this and are reflected by the language of the laws found in Chapter 153.




Grandparent Access to Grandchild Over Parent's Objection New Law

House Bill 1012, passed by the Texas Legislature and awaiting Governor Perry's signature, changes the Texas Family Code provisions regarding access by a grandparent to a grandchild over the objections of a parent.  The statute allows a court to grant access over a parent's objection by a grandparent to a grandchild.  This changes the prior law that required a court to grant access upon meeting the terms of the statute.  Now, a court may or may not grant the access.  If the court does grant access over a parent's objection, the court must enter certain findings about whether the grandparent has overcome the presumption that a fit parent acts in the best interest of that parent's child by proving that the denial of access to the child would significanly impair the child's physical health or emotional well-being. 

Click here to see the text of HB 1012.

This new law further erodes grandparents' access to grandchildren, particularly in circumstances where one parent has passed away and the other parent refuses to maintain a relationship with the deceased parent's family.  Instead of requiring the court to award access upon meeting the already high standard of proof set out by the US Supreme Court in Troxel v. Granville, the new law allows a court to either grant access or not grant it, even in the face of the required proof.

As a Dallas family law attorney, I have found the Dallas County family court judges to be very amenable to grandparent access to grandchildren.  I have had a couple of cases where one parent passed away and the other parent denied a relationship between the deceased parent's family.  In those cases, the judges have all been very empathetic to the grandparent's situation and wanted to encourage that relationship.  But, I'm sure some judges are not so inclined.