CLE: 2010: Trying a Custody Case to the Bench - Practical Pointers

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Title

CLE: 2010: Trying a Custody Case to the Bench - Practical Pointers

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Larry Noll

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St. Mary's University School of Law San Antonio Texas Alumni Homecoming, St. Mary's University School of Law Alumni Homecoming

Date

2010-03-12

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St. Mary's University School of Law Alumni Homecoming

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RFC3778

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English, en-US

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Text

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STMU_HomecomingCLE2010Noll

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TRYING A CUSTODY CASE TO THE BENCHPRACTICAL POINTERS

Judge Larry Noll
408th District Court
100 Dolorosa
San Antonio, Texas 78205
(210) 335-2831
lnoll@bexar .org

St. Mary's University Law_
School
Homecoming CLE
San Antonio, Texas
March 12, 2010

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LARRY NOLL
DISTRICT JUDGE
408TH DISTRICT COURT
Bexar County Courthouse
100 Dolorosa
San Antonio, Texas 78205
Phone: (210) 335-2831/ Fax: (210) 335-3042
Board Certified, Residential Real Estate Law
Family Law- Texas Board ofLegal Specialization

lno11C(])bexar.org

Schools Attended
St. John Berchmans (1951-1959); HolyG-oss High School (1959-1963);
St. Mary's University (1963-1967) - Undergraduate - BA;
St. Mary's University Law School (1970-1972) -J.D. San Antonio, Texas

Legal Activities
Licensed April 17, 1973; Member, American Bar Association, Texas Bar Association, San
Antonio Family Lawyers Association, San Antonio Bar Association; Mexican American Bar
Association; Former Director and Secretary of San Antonio Young Lawyers Association
(1975-1977); dlairman, Young Lawyers Drug Abuse Education Program (1976); Member,
Fee Dispute Committee, San Antonio Bar Association (1977-1979); Chairman, Fee Dispute
Committee, San Antonio Bar Association (1979-1980); Graduate of Court Practice Institute
of Chicago, Illinois (1976); Director, San Antonio Bar Association (1980-1988); Secretary,
San Antonio Bar Association (1981-1989); Vice-President, San Antonio Bar Association
(1982-1983; 1990-1991); President, San Antonio Bar Association (1992-1993); Admitted to
Practice in U.S. District Court, (Western District of Texas); Arbitrator, U.S. District Court
(Western District of Texas) (1986 to 1994); Board Certified- Family Law and Residential
Real Estate Law - Texas Board of Legal Specialization; Director, San Antonio Family
Lawyers Association (1982-1985); Fellow, Texas Bar Foundation (1982 to present); Fellow,
San Antonio Bar Foundation (1988 to present); Justice of the Peace, Precinct 2, Place 1,
Bexar County, Texas (1982-1984). Adjunct Professor, St. Mary's University - Domestic
Relations/Family Law (1988 to present); Member, State Bar College (1987 to present):
Municipal Judge, Leon Valley (1987 to . 1997); Member, State Bar of Texas Grievance
Committee Professional Enhancement Program (1998 to 2003); Member, Texas Supreme
Court Committee on Professionalism (1989); Member, San Antonio Bar Association Family
Law Section (1995 to present); Member, San Antonio Trial Lawyers Association (1990 to
2001); Member, San Antonio Family Lawyers Association (Board Certified 1980-present);
Board of Directors, San Antonio Bar Association Family Law Section (2002 to present);
Member, San Antonio Bar Foundation Board of Trustees (2002 to present); Super Lawyer
by Super Lawyers (2003 & 2004), a Texas Monthly publication; Democratic Party Nominee
for election to 40gth District Court of Bexar County (2006); Voted San Antonio's Best
Lawyers in Real Estate and Family Law, Scene in SA Monthly Magazine (August 2006);
Elected November 7, 2006 as 408rh District Court Judge, Bexar County, Texas; Judge, 408th
District Court, Bexar County, Texas (2007).

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Other Activities
Director, St. Mary's University Alumni Association (1978-1979); Vice-President, St. Mary's
University Alumni Association (1979-1981); President-elect, St. Mary's University Alumni
(1981-1982); President, St. Mary's University Alumni Association (1982-1983); VicePresident, St. Mary's University Athletic Association (1977-1984); President, St. Mary's
Athletic Association (1987-1989); President, Holy Ooss Center (a non-profit organization)
(1984 to 1992); President, Holy Cross Community Services of Texas (1992-2000); VicePresident, Board of Trustees, Holy Cross High School (1984-1987); President, Board of
Trustees, Holy Cross High School (1988-1992); Board of Directors, American Cancer
Society (1983-1985); Board of Directors, Catholic Cable 1V of San Antonio (1983-1984);
Board of Directors, San Antonio Library Foundation (1984-1985); Leadership San Antonio
(1985); St. Mary's University Athletic Hall of Fame (1991); Holy Cross High School Hall of
Fame (1999); Distinguished Alumnus, St. Mary's University (2000); Archdiocese of San
Antonio 2004 Catholic Schools Hall of Fame Award; 1sr Vice President, Holy Cross
O:>mmunity Services of Texas, Inc. (2003); Doctoral Achievement Award - West San
Antonio Cllamber of Commerce (2004).

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TABLE OF CONTENTS
I.

INTRODUCTION
A. Holley vs. Adams factors ..... ... ... .... ............ .................... ...... ... .......... 1
B. Desires of the child ... .. .. .... .... ... .. .. .... ... .......... ...... ...... . . ........... ....... . I
C. Present and future physical and emotional needs of the child ......... ........ ... ... 1
D. Present and future emotional and physical danger of the child . . ..... . .. ... ... .. ... 2
E. Personal abilities of the person(s) seeking custody ..... .. .. .. ..... .... .... . ..........2
F. Available assistance programs ......... . ... ... ................. ... . ........ ..............3
G. Plans for the child by those individuals or by the agency seeking custody ........ 3
H. Instability of home or referral placement . ... ... ...... ... ...... ... .............. . .... ...3
I.

Acts or admission of a parent ... .. .. ....................... .. ........................ ..... 3

J.

Any excuses for the act of admissions of a parent ..... ....... ..... ...... . ............. 3

II.

PICTURE OF THE CHILD OR CHILDREN .. . .. .. ...... .. ..... .... ................ ....... 3

III.

CHILD OVER TWELVE (12)EXPRESSING PREFERENCE . .......... ..... ......... .4

IV.

LET THE JUDGE SEE THE EVIDENCE ............. .... ...... ... ... ......... .. .......... 4

V.

BRING PLEADINGS TO THE COURT/HAVE YOUR DISCOVERY WITH
YOU .. . .... . .... . .. ........ ......................... ....... ......................... .. .. ...........4

VI.

TWO LAWSUITS IN ONE ..... .. ... ... .. .... .... ... ... ... .............. ...... . .... ...........5

VII.

PREMARK EXHIBITS .. .. .. ........ ... . .. .... ... ...... .... .......... ... .. ......... ........... 5

VIII.

REQUESTS FOR DISCLOSURE .. ................... ......................... .. ............ 5

IX.

SOCIAL STIJDY- UPDATE IT .. .. ............ . ......... ......... .... ... ... ........ .. ...... 5

X.

EVIDENCE THAT PREDATES ORDER TO BE MODIFIED .........................6

XL

HIGH CONFLICT MERITS JMC? ..... .... .. .. .... ........ .. .. ...... ...... .. .... ...... .... .6

XII.

CIVIL DISTRICT JUDGES CUSTODY SURVEY .... (see appendix) ......... ...... .6

XIII.

CONCLUSION ... ............. ... . ...... ... .. ..... .... .... .... . .......... ..... .... .. ........ ... 7

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Trying A Custody Case to the Bench -Practical Pointers
I.

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feelings known. I am not advocating
that a three year old be listened to but
to get the point, some children are
more equipped than others to express
themselves and some attempt to
determine their desires should be
done. Although, as I said this desire is
not case determinative, it is a factor to
take into consideration particularly if
the child is 12 or older or close to
being 12.
Caution has to be
acknowledged because according to
the best interest standard, a choice
made by a child that is not in that
child's best interest will rarely be
granted. A child's choice is only one
factor. Maturity of the child and
absence of undue influence have to be
proven to me to even consider choice
before looking at best interest.

INTRODUCTION
More and more, district judges in Bexar
County are seeing an increase in the
number of cases being tried to the bench
involving custody. Actually, it is the right
to determine primary residence of the
child or children. The following tips are
not intended to be exclusive but are meant
to be tips from the author as to his
experience with these types of cases.
There are 13 Civil District Judges in
Bexar County, soon to be .14, and every
judge has somewhat of a different take on
what evidence he or she wants to hear in
resolving the issue of right to determine
primary residence. With that in mind, I
submit my practical pointers to assist you
in trying custody cases before the bench.
Later, I will present some of my
colleague's pointers. Hopefully, this will
help you draw your own conclusions as to
what does and does not work in this
important area in bench trials in the
Courts of Bexar County in the custody
area before the bench.

367 (Tex. 1976). Even though this was
a termination case, the Holley factors
are commonly known as the starting
point when you are dealing with
custody issues before the bench. I
always wonder if counsel has read
Holley or knows of the Holley factors.
Assuming that reiteration of those
factors is a review and not new
startling news, I for one like to see
counsel develop the Holley factors in
these cases. What are these factors?

C. Present and future physical and
emotional needs of the child. Children
need permanency and security; health
care concerns have to be accounted
for. For instance a child that is an
autistic child, diabetic, or has ADD
problems present real concerns.
Failure to present evidence fully
developing these areas for a child's
well being is a disservice to the client
and the child as well as the court.
Dietary concerns for a grossly
overweight child should never be
overlooked or down played. The
needs of a gifted child as well as a
talented child should be addressed.
Problems dealing with sleepwalking,
bedwetting, nightmares, anti-social
behavior, need to be addressed.

B. Desires of the child. Efforts should be
made to determine wishes of the child
even though not case determinative.
My three year old granddaughter is
equipped at her young age to make her

D. Present and future emotional and
physical danger to the child. Child
abuse by the parent(s) of the child has
to be related to the court. A parent's
trouble with the law and/or, evidence

A. Holley vs. Adams factors; 544SW2nd

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1

Trying A Custody Case to the Bench -Practical Pointers
of negligent supervision of the child or
children needs to be related to the
court.

both parents explored with the local
school district or the school that the
child is attending to discuss this with
counselors,
teachers
and
administration
to
determine
recommendations for improvement or
alteration of disruptive behavior? If
the child is musically inclined or
artistically inclined, what efforts have
the parents made to assist the child in
furthering these talents?

E. Parental abilities of the person(s)
seeking custody. Evidence has to be
developed that shows which parent is
able to provide a safe and secure home
for his or her child or children. The
appropriateness of placement with a
parent can not be overlooked. What
kind of parenting abilities has either of
the parents shown in the past? Were
both parents involved in the feeding,
bathing, clothing and caring for the
child? Did either or both parents
follow up on recommendations from
a physician as to the need for eye
glasses, dental work, neurological
exam, dyslexia examination, changes
in diet, tutoring programs, proper
administration of medications, or any
other evidence that shows action or
lack of it in caring for a child with
special needs.

G. Plans for the child by those
individuals or by the agency seeking
custody.
What plans have either
parent developed assuming the child
will live with dad or mom regarding
the child's future? What school will
the child attend; what extracurricular
activities will the child be involved in;
if medical intervention is needed in
the future, what plans has either parent
come up with to deal with future
medical including dental, optical and
hearing?
H. Instability of home or referral
placement. How many homes have
the parent or parents had in the last 3
to 5 years? What are the present
living arrangements and how long
have they been in place, or what are
the intentions to change them in the
very near future?
Five different
homes in four (4) years is not a good
sign.

F. Available assistance programs. Has
either parent or both parents attended
any parenting classes, obtained
counseling to assist each other in
dealing with the other or in dealing
with the child or children whether or
not they have special needs in this
area? If the child has a special need
such as in remedying reading
difficulties or in rectifying a lack of
proper social behavior, what have the
parents done or failed to do with
regard to obtaining assistance for the
child?
If the child is gifted and
talented, is the child in AP classes and
if not, why not? If the child is an
extremely bright child, why is the
child failing in school and becoming a
discipline problem at school and
home? What efforts have either or

I.

2

Acts or admissions of a parent.
Leaving a child unattended for periods
of time, use non-prescription drugs as
well as abuse of prescription drugs
over time; evidence of drug addiction,
alcohol addiction, smoking addiction;
evidence of trouble with the law such
as shoplifting, hot check writing,
DWI, and DUI have to be related to

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Trying A Custody Case to the Bench -Practical Pointers
picture of the child or children, but in
a bench trial that is not always the
case. I am always suspect when
parties say they care so much for their
child or children and want them but
can't or don't produce a photograph.
It is very telling when one is not
produced. A plethora of cameras
available nowadays makes a failure to
produce a photograph inexcusable.
Pictures should also exist with the
parent and child or children. Show the
child with your client on vacation,
Thanksgiving,
Christmas,
spring
break, summer, backyard parties, at a
sporting event, church event. Pictures
show involvement; don't overlook
that!

the court.
Failure to exercise
visitation allowed by prior court order;
failure to provide for medical
insurance as previously ordered,
failure to support a child according to
one's abilities, and a series ·o f broken
promises to a child or children by a
parent are important for assessment
purposes.

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J. Any excuses for the act or admissions
of a parent. Evidence needs to be
presented that shows that one parent
attempted to correct the other parent's
activities especially the use of drugs or
properly taking care of himself or
herself when in ill health. One should
develop evidence sufficient to show
why they could not pay child support;
why they did not visit; why they did
not prevent another parent from the
use of drugs, alcohol or smoking after
learning that the other parent became
pregnant.

II.

The Holley factors are certainly not
the only factors for the court to take
into consideration, but if one is to try a
case and be successful in front of the
bench one must know the Holley
factors and present evidence on the
foregoing or develop that there is a
lack of evidence on the foregoing for
the person claiming to have grounds
for modification or original custody
determination.
I.

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PICTURE OF THE CHILD OR
CHILDREN. The old adage that
"pictures are worth a thousand words"
is definitely true in trial to the bench
regarding the right to determine the
primary residence. Time and time
again I hear cases where the parties
discuss the child at issue. In jury trials
the parties seem to always have a

3

CHILD OVER TWELVE (12)
EXPRESSING PREFERENCE. More
and more there are motions for the
court to interview the child in
chambers. All of the judges, without
exception, do not want child(ren)
brought to the courthouse during
school hours for this purpose. If there
is going to be an interview of the child
in chambers it needs to take place after
school is out so the child misses no
school. A better procedure would be
to arrange for an interview with the
Domestic Relations Officer for the
county at a time after school is out for
the express purpose of determining the
maturity of the child to make the
preference and secondly to determine
whether the child has been promised
anything for his or her choice. The
Bexar County Domestic Relations
Officer can not be called as a witness
in such instance; the DRO is merely a
fact finder to assist the court in
determining the maturity and lack of
influence exercised upon the child.
The results of the interview with the

Trying A Custody Case to the Bench -Practical Pointers
Domestic Relations Officer are shared
with counsel in chambers. Once the
information about the maturity of the
child to express a preference and lack
of pressure or influence by a parent is
resolved, then the court examines the
child m chambers to determine
preference.
III.

IV.

admissibility or production of
evidence. Don't assume that the
computers are always going to be
prepared to print out a copy of the
social study or custody evaluation
done by mental health providers.
Bring a copy with you to court in the
event it can't be printed off the system
maintained by the District Clerk. The
Rules of Civil Procedure Apply To
Family Law Cases. There is no a
family law exception for failing to
answer interrogatories, request for
productions or request for disclosure.
Supplementation of discovery ts
absolutely essential.
There ts no
family law exception for failure to
supplement.
Failure to disclose
yourself as expert witness on legal
fees is one sure way to make sure you
don't get paid if you win. Don't close
without putting on your attorney's
fees.

LET THE JUDGE SEE THE
EVIDENCE. Time and time again,
parties m bench trials that are
successful admitting evidence leave it
in a place it can not be reviewed easily
by the court. It is either left on the rail
or counsel table or on the witness
stand and not given to the judge for
revtew. It is far better to review the
evidence as the case moves along just
as evidence is published to the jury
once it is admitted. Once the case is
concluded; unless the court takes the
case under advisement, the ruling is
forthcoming. If evidence has been
reviewed during the trial it insures that
the evidence has been considered in
the final ruling. The courts are
interested in reading the emails,
looking at the My Space page or the
Face Book page to determine if what
counsel considers important is really
that important. Let the judges see the
evidence and just don't give us stacks
at the end of the case.

v.

BRING
PLEADINGS
TO
COURT/HAVE YOUR DISCOVERY
WITH YOU.
Don't assume our
present system is going to have all the
pleadings at the time you need them.
At the very least, bring the latest
pleadings and order for the court to
revtew. Make sure you have your
discovery request with you in case the
court wants to review the discovery
when an issue comes up about

VI.

4

TWO LAWSUITS IN ONE. The
clients fighting over the right to
determine primary residence is bad
enough. Lawyers fighting each other
because of personality conflicts means
there are two lawsuits going on at
once.
You can't maintain your
objectivity and represent your client
when you get mired in a personal
attack on the other counsel. Side bar
remarks directed at counsel and their
failings or short conungs are
unprofessional. Comments such as
"no he didn't" or "that's a lie" serve
no purpose and are unprofessional
interruptions to the court proceedings.
PREMARK EXHIBITS. Preparation
for a custody case before the bench is
gomg to entail introduction of
evidence in the form of exhibits. Premarking exhibits and pre-exchanging

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Trying A Custody Case to the Bench -Practical Pointers
made to provide the exammer new
information that may or may not
change his or her recommendations.

exhibits will increase the effectiveness
of the presentation to the court and
keep the court from being bogged
down in this area. This whole process
can be a great time saver plus it should
be a help to the parties in evaluating
their case to be presented. Granted,
we don't like to play our hand when
going to trial but remember trial by
ambush is a thing of the past.
VII.

VIII.

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IX.

X.

REQUEST FOR DISCLOSURE.
Using this pretrial discovery tool
should be an absolute must. Also,
don't forget to supplement and update
and follow the rules in regard to
deadlines. Disclosure of persons with
relevant facts and people who are
intended to be called who have
specialized knowledge "psychologist,
psychiatrist, social workers" need to
be disclosed if you intend to have
them testify. The Rules of Civil
Procedure Apply To Family Law
Cases.
SOCIAL STUDY-UPDATE IT!
Make sure the court has a copy of the
social study or custody evaluation if
there IS one. Don't count on the court
being able to bring it up on the
computer. Bring the hard copy with
you to make sure the court has it. It is
sometimes cumbersome to try and
print the report off of the district
court's computer system and what if
the system is down. Secondly, check
the date on the social study or custody
evaluation. Has it been updated?
What's the date on the original report?
Has there been any significant thing
happen since the date of the last
report? The whole process may be
stymied when parties are relying on a
social study or custody evaluation that
is a year old and no effort has been

5

EVIDENCE THAT PREDATES
ORDER TO BE MODIFIED. Time
and time again an effort is made to go
behind the last order. Remember, that
in a modification, activity is measured
from the date of the last order.
Objection should and usually does
prevent discussing matters that predate
the last order. There are exceptions to
this general rule but for the most part
any objections are going to be
sustained when evidence is attempted
to be produced that predate the last
order.
HIGH CONFLICT MERITS JMC? It
is always amazing to me when the
parties are asked if are there any
agreements that the parties have
reached or stipulations that the parties
have entered into and their response is
that "we have agreed upon joint
managing conservatorship," but can't
agree on who is to determine the
primary residence under this joint
managing conservatorship. As the
case unfolds and develops it becomes
apparent that this a high conflict case
where the two (2) parents have never
been able to get along, continue to
battle, have taken each other to court
for various reasons over a stormy
period that may be as little as six (6)
months or three (3) years in the
making and somehow or another these
two (2) warring people are going to be
able to work together under joint
managing conservatorship to make
decisions that affect this child or these
children. Time and time again, these
warring parties have agreed to be put
on equal footing with one another to

Trying A Custody Case to the Bench -Practical Pointers
operate under the rights and duties
allowed by the court when history has
shown that is impossible. When there
is high conflict, there is no way parties
can agree, don't use JMC. One party
should be the sole managing
conservator and the other party should
be the possessory conservator. All
judges understand the underlying
basic presumption is that the parties
should be joint managing conservators
but sometimes that is just not
practical.
XI.

lies in creating a sense of injustice.
Judges want to do the right thing and
judges want facts not arguments and
legal conclusions. Facts are the power
to persuade; never lose sight of being
professional in the presentation of
those facts.
XII.

CIVIL
DISTRICT
JUDGES
CUSTODY SURVEY. Attached as an
exhibit to this paper is a survey taken
of the civil district judges on what
they consider to be important in a
custody trial to the bench. For your
next custody case before the bench,
you should review these results and
concentrate on evidence where 50 per
cent or more of the judges have agreed
that certain evidence is more
important than other evidence. The
survey can be used as a primer to
marshal your evidence, take your
depositions, do your discovery and
hopefully help you organize your case
so a logical and persuasive case can be
made for your client and that the best
interest of the child or children will be
telegraphed to the judge. Hopefully
the foregoing will help you as you
prepare for your next custody case to
the bench. Remember that in a bench
trial you only have one juror-the
judge. The first lawyer to make the
facts come alive in a bench trial has a
tremendous advantage. Remember
that you are talking directly to a fellow
human being about the gut stuff of
life. What' s right and what's wrong.
What's fair and unfair and what's just
and unjust. The power of persuasion

6

CONCLUSION. Hopefully, using the
suggestions herein will make your
Bench Trial Custody Case a win for
your client - or at the least, improve
your client's chances of winning.

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Trying a Custody Case to the Bench-Practical Pointers
APPENDIX A

Trying a Custody Case to the Bench- Evidence Judges Want to Hear
Evidence that Bexar County Judges want to hear in deciding which parent is given the
right to establish primary residence. Rate from 1 to 5 according to the following legend:
1.
2.
3.
4.
5.

Unimportant
Somewhat important
Important
Very important
Case determinative

Results of Survey of Civil District Judges :
(Example 1-50% of the judges felt #4 in the
legend applied;25% felt #3 applied;25% felt
#2 applied)

The questions are ranked by importance - the actual survey is at Appendix B.

1. What type of situations/people has parent exposed the child (ren) to? (e.g.
strippers, paramour, family members or friends who are convicted child abusers?)
90%- 4;

10% -5

2. Which parent has shown that he or she can provide better for the child' s
emotional and physical needs?
85%- 4;

15% -3

3. Did either parent's conduct interfere with the best interest of the child (ren)?
80%- 4;

20%-5

4. The home environment of the parties.
75%- 4;

25%-3

5. Were the court's temporary orders violated in regards to possession and
visitation? If so, by whom?
75%- 4;

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25%-5

6. Does opposing parent have any problems with depression or mental illness?
75%- 4;

12%- 5;

12%- 3

7. Are there any allegations/convictions for physical abuse of spouse, child (ren), or
other person?
75%- 4;

24%-5

8. Which parent has been primary caretaker?
75%- 4;

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25%-3

9. What type of relationship does the child (ren) have with parents?
75%- 4;

25%-3

10. Which parent can create a more stable environment for the child (ren)? (e.g. home
environment, steady job/employment history, travels away from home and
children?)
75%- 4;

25%-3

11 . Which home environment is more appropriate for the child (ren)?
75%- 4;

25%-3

12. How much time does the parent spend with the child (ren)?
67%- 4;

33%-3

13. Did the parent with visitation regularly exercise it?
67% -4;

33%-3

14. Where would the child (ren) have better social opportunities?
60%- 2;

12%- 3;

12%- 4;

12%-5

15. How well does parent supervise the child (ren)? (e.g. are left alone? Are they left
with a sitter? How often? For what reason?)
60%- 4;

40%-3

16. What are the wishes or desires of the child (ren)?
60%- 3;

25%- 4;

15%-2

17. Which parent retains the family home, if either?
11

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60%- 2;

25% -1;

15%-3

18. Has parent sought any parental advise or advise about guidance of child (ren)?
60%- 3;

25%- 2;

15%-4

19. Does parent appreciate and promote family structure and togetherness?
60% -3;

40%-4

20. The testimony of experts and their opinions after evaluation of parties, and their
recommendations. (Psychiatrists/psychologist)
50%- 4;

25%- 3;

25%-2

21 . Which parent would be better at granting and promoting access between the
parents, child (ren) and extended families?
50%- 4;

37%- 3;

12%-5

22. Which parent does the best job of keeping the other informed about the child
(ren)?
50%- 4;

37%- 3;

12%-5

23 . Which parent encouraged the children's relationship with the other parent? (e.g.
helping children shop for special occasion gifts and cards for the other parent,
etc.)
50%- 4;

25%- 3;

12%- 2;

12%-5

24. Where would the child (ren) have better educational opportunities?
50%- 3;

25%- 2;

12%- 5;

12%-2

25. Are there any allegations of mental cruelty to spouse or child (ren)?
50%- 4;

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25%- 5;

25%-3

26. What type of support network does the parent have? (e.g. Friends? Extended
family? Caretakers for children?)
50%- 4;

40%-3

27. What type of discipline does each parent use?
50%- 3;

-

25%- 4;
111

25%-2

28. Which parent expresses a clearer plan for the child (ren) both now, and in the
future?
50%- 3;

37%- 4;

12%-2

-

29. Which parent has been more responsible in regards to the child ' s education with
regards to the following: Homework/studying? Absence/tardies? Meeting with
teachers? Choosing schools? Involved with school?
50%- 4;

50%-3

30. Which parent is more consistent in their attitude toward the child (ren)?
50%- 3;

37% - 4;

12% - 2

31. Which parent focuses more on the needs of the child?
50%- 3;

37% - 4;

12%-5

32. Would parent, if given right, be willing to remain if move would be unhealthy for
the child (ren)?
50%- 3;

37%- 4;

12% - 5

33. How involved is parent in child's social activities?
50% -3-;

25%- 4;

25%-2

34. Is parent patient or quick tempered?
50% -4;

37%- 3;

12% - 2

35. If there is an ad litem, how does ad litem feel about child's residence, ifhas any
opinion?

50%- 3;

37%- 4;

13%-2

36. If parent has child (ren) by previous marriage, what is their relationship with the
other children?

50%- 3;

37% - 4;

13%-2

37. Does opposing parent show favoritism to one child over other children?
37%- 3;

37%- 4;

lV

25%-2

-

-

38. Are the children close to the parent's extended family and what does the parent do
to promote contact with extended family?

25%- 2;

25%- 4;

37% - 3;

12%-5

39. Does opposing parent have any history of problems with drugs or alcohol?

-

75%- 4;

12%- 5;

Other areas Judges give importance to:
1.
2.
3.

Appearance of clients; 15%-2
Performance of attomeys;15%-2
Use of demonstrative evidence (pictures, video, my space, recordings
between the parties)l5%-3

-

-

12%-3

v

-

-

-

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Citation

Larry Noll, “CLE: 2010: Trying a Custody Case to the Bench - Practical Pointers,” St. Mary's Law Digital Repository, accessed March 27, 2017, http://lawspace.stmarytx.edu/item/STMU_HomecomingCLE2010Noll.

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