The Best Interest of the Child, Not Moms versus Dads

One of the most common misconceptions which I encounter as a family law attorney in Texas is the idea that the law favors mothers over fathers in issues of child custody. Often, both mothers and fathers expect that Texas courts will automatically give a mother primary possession of children. This belief, however, is misplaced. In fact, Texas law forbids courts from considering the gender of the parents in deciding who will be awarded primary custody of a child. See Tex. Fam. Code Sec. 153.003.

So, how do Texas courts decide child custody issues? In determining which parent will be the child's primary joint-managing conservator or sole-managing conservator, Texas courts will determine what would be in the "best interest of the child." See Tex. Fam. Code Sec. 153.002. Of course, both parents often feel that it is in the child's best interest that he or she be named the primary joint-conservator or the sole managing conservator. For help in deciding which parent to choose, Texas courts will look at the facts of each case, and weigh what are known as the Holleyfactors-that is, (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 those individuals; (6) the plans for the child by the parent and the individual seeking custody; (7) the stability of the home; (8) the parents' acts or omissions which indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the parents' acts or omissions. See Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976).

Importantly, how the Holley factors will stack up in any particular case is not determined by simply being either a mother or a father, but instead on the individual circumstances of the case.

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