Wednesday, July 29, 2009

Best Interest of the Child in Texas: The Holley v. Adams Factors


The best interest of the child is an important consideration for judicial decisionmaking in the area of child custody and visitation. It is also part of the criteria in termination of parental rights proceedings. While the best-interests test is well-known, it is also rather broad and subject to different interpretations. Just what does it mean, and how is it implemented in the courts of this state? The Texas Supreme Court added greater specificity in its much-cited opinion in Holley v. Adams by providing a list of considerations for the judge to apply and hear evidence on. These are known as the Holley v. Adams factors and can be thought of as guidelines. Judges hearing cases involving minor children retain a large amount of discretion and may consider evidence that does not necessarily fit well into any one of the categories.


The Best Interest of the Children Standard in Texas

Nonexclusive factors that the trier of fact in a termination case may use in determining the best interest of the child include

(1) the desires of the child,

(2) the emotional and physical needs of the child now and in the future,

(3) the emotional and physical danger to the child now and in the future,

(4) the parental abilities of the individuals seeking custody,

(5) the programs available to assist these individuals to promote the best interest of the child,

(6) the plans for the child by these individuals or by the agency seeking custody,

(7) the stability of the home or proposed placement,

(8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one, and

(9) any excuse for the acts or omissions of the parent.

Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); In re M.N.G., 147 S.W.3d 521, 539 (Tex. App._Fort Worth 2004, pet. denied).

These factors are not exhaustive. Some listed factors may be inapplicable to some cases; other factors not on the list may also be considered when appropriate. C.H., 89 S.W.3d at 27; M.N.G., 147 S.W.3d at 539. Furthermore, undisputed evidence of just one factor may be sufficient in a particular case to support a finding that termination is in the best interest of the child. C.H., 89 S.W.3d at 27; M.N.G., 147 S.W.3d at 539. On the other hand, the presence of scant evidence relevant to each Holley factor will not support such a finding. C.H., 89 S.W.3d at 27; M.N.G., 147 S.W.3d at 539.

In addition to the above, a parent's inability to provide adequate care for the child, lack of parenting skills, poor judgment, and repeated instances of immoral conduct may also be considered when looking at the child's best interest. In re C.A.J., 122 S.W.3d 888, 893 (Tex. App.- Fort Worth 2003, no pet.).

UCCJEA Factors considered by Texas Courts


How do family courts deal with a situation where grandparents and grandchildren live in different states? The Texas Family Code establishes rules for Texas courts to follow, and criteria to apply, when considering whether to exercise jurisdiction over a child custody matter when such litigation could also be pursued in another state. A recent appellate opinion from the Austin Court of Appeals cites the relevant law and provides guidance. An excerpt follows:


The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which Texas adopted in 1999, governs jurisdiction in child custody issues. Tex. Fam. Code Ann. §§ 152.001-.317 (West 2002 & Supp. 2008). The UCCJEA seeks to prevent conflicting jurisdiction and relitigation of child custody determinations by limiting the authority to make custody determinations to one court, even when multiple states have personal jurisdiction over the parties and a legitimate interest in the issues involved. See Hart, 242 S.W.3d at 106-07.

When, as here, a Texas court makes a custody determination, it retains exclusive continuing jurisdiction until it or another Texas court determines that Texas no longer has sufficient contacts or is an inconvenient forum. See Tex. Fam. Code Ann. §§ 152.202, .207 (West 2002).

When determining whether Texas is an inconvenient forum, the UCCJEA directs trial courts to consider "all relevant factors," including:

(1) whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;

(2) the length of time the child has resided outside this state;

(3) the distance between the court in this state and the court in the state that would assume jurisdiction;

(4) the relative financial circumstances of the parties;

(5) any agreement of the parties as to which state should assume jurisdiction;

(6) the nature and location of the evidence required to resolve the pending litigation, including any testimony of the child;

(7) the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and

(8) the familiarity of the court of each state with the facts and issues in the pending litigation.

Id. § 152.207(b).

Because the original divorce decree, which included the child custody determination, was entered in Bastrop County, the trial court was the court of continuing exclusive jurisdiction. See id. § 152.202. However, the court declined to exercise this jurisdiction, finding:

that the State of Texas is an inconvenient forum, and the State of Florida is a more appropriate forum and therefore, the Court declines to exercise jurisdiction in this case. Specifically, the Court bases its findings on the following factors: (1) the length of time the Child has resided outside the State of Texas; (2) the distance between this Court and the court in the state that would assume jurisdiction, that being the state of Florida; (3) the relative financial circumstances of the parties; and (4) the nature and location of the evidence required to resolve the pending litigation, including the testimony of the child.

The Baggses argue that the trial court's finding that Texas was an inconvenient forum is not supported by the evidence. The Baggses contend that three of the four factors cited by the court--the distance between the courts, the relative financial circumstances of the parties, and the nature and location of the evidence--actually weigh against the court's ruling and in favor of Texas as the more appropriate forum. (3) The Baggses also contend that they do not have standing to bring suit under Florida law and thus a fifth statutory factor--the ability of the court of each state to decide the issue expeditiously--weighs against the court's ruling.

We will examine each of these factors in turn. ...

Click the case name to read the entire opinion in Baggs v. Becker, No. 03-07-00731-CV (Tex.App.- Austin, Feb. 6, 2009, pet. denied June 2009) (Texas court declines to exercise jurisdiction in favor of Florida on forum non conveniens grounds; the court of appeals affirms the ruling finding that the State of Texas was an inconvenient forum.)