Facing Divorce? Tips from the Trenches Divorce and Family Court: Child Custody: A View from the Bench

By: Manjula Shaw, CFP®, CDFA®

“Tips from the Trenches” is a series of articles based on conversations with professionals who work with individuals facing or considering the prospect of divorce. Watch this space for conversations with professionals in Family and collaborative law, Forensic-Certified Public Accountants, Mediators, Marriage Counselors, Family Court Judges, and Valuation Specialists. 

Manjula Shaw is a Certified Financial Planner (CFP®) and an Asst. Vice President at Tanglewood Legacy Advisors. As a Certified Divorce Financial Analyst (CDFA®), Manjula works with individuals facing late-stage divorce.

Manjula’s conversation is with Judge Gloria López, elected to the 308th District Court of Harris County, Texas, in 2018. Before taking the bench, Judge López was a family law practitioner. Judge López is bilingual in Spanish and English, a tremendous advantage to her Spanish-speaking constituents; she is also the first Latina to be elected to the 308th District Court.

Child Custody: A View from the Bench

In child custody cases, the Texas Constitution provides that parents have a constitutional right to raise their children and make decisions on their behalf. Case law precedent means non-parents have a more challenging uphill battle to become primary conservators. Courts presume that a fit parent makes good decisions in the best interest of their children. A high bar exists for non-parents seeking custody of a child. They would need to make a successful case that the parent is not fit to care for the child.

The Texas Family Code provides that the court must always consider the child’s “best interest.” A judge also considers public policy and should provide rulings for the child to connect with the parent. Judge López firmly believes that the child needs to develop close relationships with the parent.

What is the “best interest” of the child? Is it objective? Judge López refers to Holley vs. Adams – a 1976 case involving the termination of parental rights. In this case, the Texas Supreme Court listed factors a judge should consider when deciding the “best interest” test. These factors are called Holley Factors. Judge Lopez has observed that the “best family lawyers print out the Holley Factors and tick them off as they attest” to the judge.

What are the Holley Factors? They require consideration of:

  1. The desires of the child.
  2. The physical and emotional needs of the child now and in the future.
  3. Any emotional and physical danger to the child now and in the future.
  4. The parental ability of the individual seeking custody.
  5. The programs available to assist the parents and the children.
  6. The plans for the child by the parent seeking custody.
  7. The stability of the home for the proposed placement.
  8. The existing parent-child relationship. Any acts or omissions of that parent may indicate a fractured relationship.
  9. Excuses of the acts or omissions of the parent.

 

Next is my conversation with Patricia Carter, a family law attorney at Carter Morris, LLP, for a deeper dive into family law and child custody.

 

 

 

 

 

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