When going through a divorce with minor children, developing a post-divorce parenting plan is a critical part of the process. In Texas, child custody is formally referred to as “conservatorship,” and in most cases “joint managing conservatorship”—or shared custody—will be the best approach to post-divorce parenting.
But, deciding to share parenting time after a divorce is just the first step. If parents agree to share parenting time after their divorce, they must then decide how they will share parenting time when going through the divorce process. Under Texas law, this involves making decisions based on the best interests of the couple’s children.
Determining Children’s Best Interests Regarding Post-Divorce Parenting Time
This is made clear in the Texas Family Code. Section 153.002 of the Texas Family Code states that, “[t]he 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.” Since the courts must focus on children’s best interests when making decisions about conservatorship, divorcing parents must focus on their children’s best interests when developing a post-divorce parenting plan out of court as well.
In many states, the law establishes a list of “best interests” factors that divorcing parents must consider during the divorce process. In Texas, the factors that parents must consider were established by the state’s supreme court in the case of Holley V. Adams. As a result, they are commonly referred to as the “Holley factors.”
Texas’s “Holley factors” for determining what is in a child’s best interests with regard to post-divorce conservatorship are:
1. “The Desires of the Child”
The desires of the child are a relevant factor for determining post-divorce conservatorship in Texas. While this is primarily the case with children who are age 12 or older, the Texas courts will consider the desires of younger children in some cases. Talking to a child about where he or she wants to live after a divorce requires a sensitive approach, and it is important that parents understand what is involved before having any discussions.
2. “The Emotional and Physical Needs of the Child Now and in the Future”
The child’s emotional and physical needs are relevant factors as well. This factor focuses on each parent’s ability to meet the child’s needs, with particular emphasis on the parents’ respective abilities long-term. Importantly, Texas law does not inherently favor either parent; and, as a baseline, it is presumed that both parents are equally capable of meeting their children’s needs.
3. “The Emotional and Physical Danger of the Child Now and in the future”
If either parent presents an emotional or physical danger to their children, this is obviously an extremely important factor that requires careful consideration. If you believe that your spouse presents a danger to your children, help is available, and one of our lawyers can explain everything you need to know.
4. “The Parental Abilities of the Individuals Seeking Custody”
Texas’s “Holley factors” also require consideration of the spouses’ respective “parental abilities.” Here too, the law does not presume that either parent is more capable than the other. However, if one parent has demonstrated an inability to parent appropriately in the past, this could impact the determining of conservatorship rights during the divorce process.
5. “The Programs Available to Assist These Individuals to Promote the Best Interest of the Child”
If one spouse has struggled with parenting in the past, the availability of programs to assist that spouse with parenting going forward can also be a relevant factor. There are various programs available in Texas; and, if you need to know more about these programs, our lawyers can assist you here as well.
6. “The Plans for the Child By These Individuals”
During a divorce, the spouses’ respective plans for their children can also impact the determination of conservatorship. Generally speaking, it is important for divorcing parents to largely be on the same page regarding their children’s upbringing—and, if they are not, this is something they will need to work to address during the divorce process.
7. “The Stability of the Home”
The stability of the home environment that each parent will be able to provide after their divorce is an important factor as well. This takes into account access to friends and extracurricular activities, other members of the parent’s household (if any), and other similar types of considerations.
8. “The Acts or Omissions of the Parent Which may Indicate That the Existing Parent-Child Relationship is Not a Proper One”
Along with a current risk of emotional or physical danger, any past acts or omissions that indicate a child’s safety could be at risk require careful consideration as well. Again, if you have concerns about your children’s safety after your divorce, this is an important matter that you should discuss with an experienced divorce lawyer.
9. “Any Excuse for the Acts or Omissions of the Parent”
If there is an excuse for a parent’s past acts or omissions that mitigates any risk going forward, this is also a relevant factor in Texas. For example, if the parent has been treated for substance dependence or another condition that contributed to his or her past acts or omissions, this will warrant consideration during the divorce process.
Other Factors May Be Relevant As Well
While these are the primary factors parents in Texas must consider when developing a parenting plan during the divorce process, this list is not necessarily exclusive. The Texas Supreme Court made this clear in Holley v. Adams, stating that, “[t]his listing is by no means exhaustive, but does indicate a number of considerations which either have been or would appear to be pertinent.” Ultimately, divorcing parents must make informed decisions based on due consideration of all relevant facts and circumstances.
How can you ensure that you are making informed decisions about conservatorship (and the other aspects of your divorce)? This involves working closely with an experienced San Antonio divorce lawyer throughout the process. If you are preparing to get divorced and would like to know more, we invite you to schedule a confidential initial consultation.
Schedule a Confidential Initial Consultation with a San Antonio Divorce Lawyer
To schedule a confidential consultation with a San Antonio divorce lawyer at Roberson Duran, please call 210-224-4077 or book an appointment online. We look forward to assisting you in any way we can.