Opinion issued April 21, 2020

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 18
- 00964
- CV

————————

——— SHELBY WRIGHT , Appella nt

V. MARK BERGER , Appell e e
On Appeal from the 387th District Court Fort Bend County, Texas Trial Co urt Ca se No. 12
- DCV
- 199166

MEMORANDUM OPINION In its final decree of divorce, the trial court appointed Shelby Wright and Mark Berger joi nt managing conservators of their eight

- year - old son, W.B. Although W.B. had lived with Shelby in Dallas from the age of two until the age of eight, the trial
court gave Mark the exclusive right to designate W.B. ’ s primary residence in F o rt2

Bend County or a neighboring county. The court also gave Mark the ex clusive right
to ma ke decision s concerning W.B. ’ s education , aft er c onsultation with Shelby

. On appeal, Shelby argues that the court ’ s decision was not supported by legally and factua lly sufficient evidence , and therefore it was an abuse of discretion.
We affirm. Background S helb y and Mark marr ied in March 2010 , when Shel by was preg nant with
W.B. Shelby moved to Missouri City, Texas shortly before W.B. was born in June 2010 . Two years later , Shel by filed for di vorce and moved to D allas with W.B. For the followin g six years, Shelby maintained W.B. ’ s primary residence i n Dallas , and she and Mark shared custody under t emporary orders . They met midway between their homes to ex change posses sion of W.B . Mark had possession of W.B. odd weekends , spring break, and during ext ended periods in t he summer. The record demonstrates that both Shelby and Mark are fit parents, and the court appointed them joint ma naging conservators. 1 The re cord also d emonstrates

1 According to the record, Shelby was W.B. ’ s primary caretaker for the first eight years of his life. She fed him, bathed him, m aintained his routine, and p ut him to b ed at night. She made a home for him when they moved to D allas , en rolled him in d ay care , and ensured h e received medical care as needed and was covered by med ical insurance

. She took him to m useums , made crafts with him, and encouraged his interest in rock collecting. She also played with him, taught him, travelled with him, and pr omot ed his rela tio nships with his grandparent s, aunt, and uncl e, who lived near by

. None of this is disputed.3

that both Shelby and Mark contributed to the ongoing discord in their relation ship

. 2 Shelby sometimes failed to communicate r el evant information in a timely manner, telling Mark about appointments or events, such as Taekwondo belt testing , afte r the fact

. Shelby sometimes prevented W.B. from accepting video chats or p hone calls

or told him to end the conversation to do chores or take a bath

. Shelby informed
W.B. ’ s school that because she was W.B. ’ s primary caretaker und er the temporary

cour t ord ers , any communication it had with Mark had to be shared with her as well.

The record also reflects that Mark consistently paid child support and shared th e cost of h ealth insurance for W. B. as well as enrichme nt acti vit ies like T aekwondo and Boy Scouts

. He remained actively invo lved in W.B. ’ s life , traveling to D a llas to attend sch ool activities with W.B. or parent

- teacher conferences. He called W.B. daily by phon e or vide o chat

. Mark also promoted a relationship between W.B . and Mark ’ s girlfriend , Jaime Parrish, whom Mark intended to ma rry, and Ja ime ’ s son, who was close to W.B. ’ s age. Mark t ravelled with W.B. and engaged in bui lding ho b bies with him, like playing with Leg os and building rob ots. Mark worked with W.B. du ring his periods of possession on reading readiness before kindergarten, and later he ensu re d W.B. did homewo rk on weeke nds and practiced reading over summ er vaca tion. He also worked with W.B . on ma th fluenc y. Later, he looked for tools , such as colored ov erl a ys, to help W.B. read despite his dyslexia

. None of these facts are disputed.

2 The record demonstrates tha t o ver the years, Shel by and Mark disagreed about parenting and questioned ea ch other about m atters s uch as the choice of pediat rician ; whethe r, w h en , and how to treat m inor medical conditions such as rashes; the presence in the home of overnight guests ; t rave l plans during extended periods of possession; home safety issues , includ i ng s afe stor age of a gun, securin g a backyard swi mming poo l , usa ge o f a car seat or a boos ter seat , use of a space heat er in the home ; and possession or return of items that were giv en to W.B. bef ore the age of two or left at one parent ’ s house. They also di sputed Shelby ’ s tard i ness to exchange possession of W.B. , disr upti o ns in the schedule due to inclement weather , and making up misse d visitation time. The existence of these dis agreements is not dispute d

.4

When Shelby ’s possession of W.B. was disrupted due to inclemen t weather, she sought makeup time, but when Mark ’s possession of W.B. was likewise disrupted , Shelby told him that the court order did not provide for makeup time.
M ark berated Shelby when she was late to arr ive at their midway meeting point , r ecorded the ir conv ers ations at all handoffs, and tracked W.B. ’ s whereabouts using an iPad he gave hi m . M ark f requently criticiz ed Shelby for lack of communication, but sometimes Mark ignored Shelby and her parents when they all attended events for W.B. or when exchan ging possession of W.B. At trial, Shelby testified that Mark was controlling and mani pulativ e; but Mark acknow l edged that Shelby ’ s communication was sometimes sufficient , and he expressed regret for having berated her about be ing late to exchange possessi on of
W.B. Mark supported W.B. ’ s relati onship with Shelby, inviting Shel by and her parents to W.B

. ’ s bir thday parties , which were a lways during Mark ’ s period of extended summer possession . He also invited Shelby to join them and other

mem bers of his famil y to celebrate Christmas in Colorado ; offered to travel to Dallas to take W.B. to d octor ’ s appoin tments; offe red to pay for a hotel to allow Shelby and
W.B. to s tay near the handoff location when he believed a predicted i ce storm made
trav elling back to D a llas treacherous ; ensured that W.B. called Shelby during Mark ’ s
pe riods of poss ess i on; and pro vided an it inerary to Shelby wh en h e travelled with5

W.B. Because Shelby is a public

- school counselor, Mark chose his periods of extended summer possession to maxi mize Shelby ’ s summer vacation time with
W.B. By contra st, Shelby made dispar aging remarks about Mark to W.B. More than four months before trial, she told W.B. that Mark wanted him to move to Missouri City and go to another school. At one point, W.B. told Mark that moving and going to another scho ol would “ruin my life. ” Shelby testifie d that it w ould be “ jus t devastating ” to W

. B

. if he were to move to his father ’ s house , and she worr ied W.B. would fall into a deep depression if that happened

. W.B. told Mar k that , when he was with his mother, he felt that his parents did no t get along , and W.B. o nce told Shelby : “ I wis h you and daddy wou ld just get along. ” Shelby discouraged W.B. ’ s growing relationship with Jaime. She lby testified at t rial that M ark called W .B. too frequently . Shelby and her parents testified that Mark ’ s periods of po ssession were excessive , should be curtailed, an d disrupted family routines. Shelby ca lled Mark ’s efforts to work with W.B. on reading over the summer “excessive. ” Shelby testifi ed that W.B. regresses when h e is with Mark by sucking his fingers, clinging to a favorite blanket, and occasio nally calling his father “ Dada

. ” She also co mp lained that Mark “ bab ied ” W.B. by continuing to carry him around when he was six years old.6

Shelby , Mark, and other trial witnesses testified that W.B. is a smart bo y who is liked by adults and peers. W.B. struggled during his first few years of sc hool ; b y the end of kinderga rten, W.B. began to lag behind his peers in reading skills

. Shelby testifi ed t hat W.B. ’ s rea ding was on level in first grade, but his teac hers expressed concern about his lack of focus and distractibility

. Shelby so ught a referr al from
W.B. ’ s pe diatrician f

or evaluation for attention deficit hyperactivity dis order (ADHD)

. Despit e Ma rk ’ s work with hi m over t he summer, W.B. ’ s reading level dropped between the end first grade and the start of second grade. In the fall o f second grade , W.B. ’ s educators referred him for testing, and he was diagnosed with dyslexia. The school provided inst ruc tion using the Scottish Rite Take Fli ght
program to address W.B. ’s dyslexia

. Meanwhile, t h e trial court had appointed Fort Bend area psychologist , Dr. Cynthia Mellor

- Crummey , to comp lete a custody evaluation. Dr. Mellor

- Crummey met with Shelby four time s a nd with Mark six times. In a n email to both parents , Dr. Mellor

- C rummey stated: “ I typically meet with parents alone about 4 times each but I will meet additional ti mes i f either parent has concerns they wish to discuss with me. This option is open to b oth parents equally and I respond when you reach out to me with conc erns you wish to dis cuss. ” O n ly Mark avai led himself of the o ffer. A t trial, Shelby tes tified that Dr. Mellor

- Cr ummey “didn ’t explain to me that I had the
oppor tunity to communicate wi th h er at any time. ”7

As part of h er custody eval uation, Dr. Mellor

- Crummey administer ed psychological evaluations ; accept ed letters from their frien ds, relat ives, neighbors, and coworkers ; observed W.B. indiv idually, with Shelby, and with Mark ; reviewed

e duca tio nal assessments from W.B. ’s school ; spoke to educators from W.B. ’s school; visit ed th e parents ’ homes ; reviewed W.B. ’s medical records ; and so ught additional beha vioral and educational assessments

. 3
D r. Mellor

- Crummey requested additional informatio n , i ncl uding a behavioral checklist to be complet ed by Shelby, Mark, and W.B. ’ s teachers as a screening tool for ADHD ; vision screening and an eye ex am from a n ophthalmologist ; and a psycho

- educational assessment . At trial, Shelby admitted that she opposed the be havioral checklists sent to the school s a nd she initially told the princip al and educators not to fill out the forms. Shelby was reluctant to ta ke
W

. B

. to see a n optometrist, believi ng the screening by his pediatrician was sufficient

. Shelby oppo sed the ps y cho

- educational evaluation that was performed by Emily

3 Dr. Mellor

- Crummey produced an 80

- p age report summari z ing her observations and the information she reviewed. Dr . Me llor

- Cru mmey att ributed the len gth of time t hat wa s required to complete the evaluation to difficulty scheduli ng with S h elby, d ue to inflexibility in her work schedule and the distance be tween Fort Bend County and D allas

. Dr. Mellor

- Crummey noted that alt h ough She lby participated in the cu stody eval uation, s he was reluctant and at times uncooperative on payment, s che duling, not allowing W.B. , who was in kindergarten and first grade at the time, t o miss sc h ool to partici pate in the court

- ordered evaluati on . She also noted that Shel by had con cluded th at the process was biased against h er and “ openly express ed her frustration and disagreement ” with Dr. Mellor

- Crummey.8

Waltmon, M. Ed ., and she was skeptical of the results. Wal tmon determined that W.B. had mild

- to

- moderate dyslexia and mil d dysgraphia, a learning disability with impair ment i n written expr ession

. Am ong other things, she recommended that W.B. be eval uated by an occup ational therapist for handw riting issues or fine motor skills. Shelby opposed an occupational therapy evaluation because the school had not recommended it. In an email to Dr. Mellor

- Cr umme y, Waltmon recommended that
W.B. attend the Briarwood School if he were in the Houston ar ea . Mark applied for
W.B. ’ s admission to the Briarwood School, and W.B. was accepted fo r the follo wing
year. Shelby opposed sendin g W.B. to the Briarwood School be caus e i t sp eci alizes in teaching children with learning disabilities , and she was concerned that W.B. would be stigmatized. Dr. Mellor

- Crummey reported that Sh elby had lied to her. For example, Shelby said that Mark did not discuss his concerns about W.B. ove r t he p hone with her. But Mark produced an audio recording of o ne such c onversation that la st ed more than an hour. Dr. Mellor

- Crummey concluded Shelby “ wants to present a particular view of her l ife ” with W.B. and distorts or lies about information tha t wo uld

con tradict that view.
A t the beginning of secon d grade and whil e Dr. Mellor

- Crummey was complet ing her custod y evaluation , Shelby began taking W.B. to see a licensed professional counselor, Dr. Kelly Webb

- Ferebee , Ph.D. At trial, Shelby9

acknowledg ed t hat s he had s ought a therapist who would testif y in the “current

cus tody battle ” to ensure that W.B. ’s best interest was represented. Shelby continually co mmu nicated with Dr. Webb

- Fereb ee about t he ongoing litigation , and Shelby paid a la wyer to r epres ent the the r apist at her de position. In an email to D r. Mellor

- Crummey, Dr. Webb

- Ferebee described W.B. ’ s relationshi p with Shelby in posi tive terms. She pr aised W.B. ’ s school distric t as one of the “ top . . . in the state

. ” She minimized concerns about W. B. p oss ibly having dyslexia, calling his rea ding and writing difficulties “[d] evelopmentally ” “ well within the normal range. ” Though
Dr. Webb

- Ferebee ha d n ot met Mark and ha d spoken to him only once by phon e , she was “ extremely concerned about the possible har m fu l effect s of a cu sto dy battle

. ” She opined that it would be better for W.B. to ask for a change of residence when he was older. She warne d: “ There is no way to measu re the likel ihood of serious ha

rm for [W.B.] by forc ing a needless change of primary res ide nce at t h i s time in his l ife. ” Dr. Mellor

- Crummey des cribed W .B. as “ very close to both of his p arents ” and she noted that he is “ more physically affectionate with his father ” but “ also v ery close to his mother. ” She state d: “ It is clear that [W.B.] ha s be en well cared for and raised with love by both of his parents. ” Dr. Mellor

- Crummey recommended that the parents have joint custody and that Mark be give n the exc lusive rights, among others, to determine W.B. ’s primary10

residence and to mak e educatio nal dec i sions o n his behalf. She based her recommendations in part on conclusions that Mark had been an effective advocate for W.B. regarding his learning differences, whereas the school and had been more focused on the possibility of A DH D. D r. Mello r - Crum mey als o noted that Shelby

“ repeatedly defers to school person nel ” regarding W. B. ’ s “ difficulties and n eeds ” instead of discussing the s itu ation with Mark or making independent decisions. She also concluded that Mark had prom ote d and s u pport ed W.B. ’ s relat ions hip with Sh elby, wh ile Shelby sought to curtail W.B. ’ s time with Mark, hired Dr. Webb

Ferebee as a th e rapist for W.B. but ultimately to provide a n opinion favorable to her in this litigation , and spoke ill of M a rk to and around W.B

. Shelby believed th at D r. Mellor

- C rummey was biased against her because her recommendation favored Mark. Shelby also believed that Dr. Mellor

- Crummey had dispar aged W.B. when she said that if his learning di sabilities were not addres s ed , he would grow to hate school

. After a 15

- da y bench trial with live and recorded testimony, the trial court entered a final decree appoint i ng Shelby and Mark joint managing conservators of
W.B. and giving Mark the exclusive right to designate W.B. ’ s p r imary residence in
Fo rt Bend County or a neig hbo ring cou nty , and the ex clusive right to ma ke decision s concerning their son ’ s education

. Shelby appealed

.11 Analysis I. The standards of review are deferential to the factfinder. We review a trial court ’ s decisi o n regarding conservator ship , including a d ete rmi nation o f which conservator will have the exclusive right to establish the child ’ s primary residence and make educational dec isions , for an abuse of discretion

. See In re J

.A.J. , 243 S.W.3d 611, 616 (Tex. 20 0 7) ; Gillespie v. Gilles pie , 644 S.W.2d
44 9 , 4 51 (Tex. 19 82 ) ; Compton v . Pfannenstiel , 428 S.W.3d 881, 886 (Tex. App.

— Houston [1st Dist.] 2014, no pet.)

. A trial court abuses its discretion by a cting in an arbitrary or unreasonable manner or w ithout refere n ce to any guiding rules or leg al princ ipl es. K

– M art Corp

. v. Honeycutt , 24 S.W.3d 357, 360 (Tex. 2000 ) ; Worford v. Stamper , 801 S.W.2d 108, 109 (Tex. 1990) (per curiam )

.

“ To determine whether there has been an abuse of discretion because the evidence is legally or fact u ally in sufficient to su ppo rt t he trial co u rt ’ s decision, we consider (1) whether the trial court had sufficient evidence upon which t o exercise its disc retion and (2) whether it erred in its application of that discretion. ” Smith v. Payandeh , No. 01

- 18

- 00 4 63

- CV, 2019 WL 2528197, at *5 (Te x. App.

— Houston [1st Dist.] June 20, 2019, no pet.) (mem. op.)

. “ ‘ An abuse of discreti on does not occur when the trial court bases its decisions on conflicting evidence, ’ ” or when there is “some evidence of substantive and probative character to sup port th e trial

c ourt ’ s decision.” In re J.J.G. , 540 S.W.3d 44, 55 (Tex. App.

— Houston [1st Dist.]12

2017, pet. denied) (quoting I n re M.M.M. , 307 S.W.3d 846, 849 (Tex. App.

— Fort Worth 2010, no pet.)). Legal and f

a ctual sufficien cy are not indepe ndent grounds for as sertion of

error , but the sufficiency of the evidence is r e levant to our determin ation of whether the court abuse d its discretion. Smith v. Karanja , 546 S.W.3d 7 3 4, 737

– 38 (Tex. App.

— Ho us ton [1st Dist.] 2 018, n o pet .) ; Stamper v. Knox , 254 S.W.3d 537, 5 42 (Tex. App.

—

Houston [1st Dist.] 2008, no pet.) (“In a suffi ciency review, appellate courts apply a hybrid analysis because sufficiency

- of

- the

- evidence and abuse

- o f

discretion standards o f review often ove r lap in family law cases.”). Evidence is legally s uff

icient when it would enable a fact finder reason ably to form a firm belief or conviction that it s finding is true. 4 See In re J.F.C. , 96 S.W.3d 256, 266 (Tex.
2 00 2 ). When reviewing th e leg al sufficiency o f evidence on appeal, we consider the evidence in the light most favorable to the trial court ’ s judgment. Se e Cit y of Keller

v. Wilson , 168 S.W .3d 802, 8 22 (Tex. 2005)

. Evidence is factually sufficient when, considering all the evidence, th e judgment is no t s o contra ry t o the overw helming

4 Evidence is leg ally insufficient whe n the record shows that : (1) there is a c omplete abse nce of evidence of a vit al fact, (2 ) rules of law or evidence bar the court f rom giving we ight t o the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vita l fact is no mor e than a scintilla, or (4) the evidence e stablish es c onclusively the oppo site of the vital fact. Cit y of Keller v. Wilson , 168 S.W .3d 802, 810 (Tex. 2005)

.13

w eight of t he ev ide nce as to be cl early wrong and u njust. C a in v. Bain , 709 S.W.2d 175, 176 (Tex. 1986).
I n a bench tria l, the trial court is the sole judge of the credibility of the witnesses and the weig ht to be given t he i r tes timony

. Nelson v. Najm , 127 S.W.3d 170, 17 4 ( Tex. App.

— Houston [1st Dist.] 2003, pet. denied)

. When no findings of fact or conclus ions of law are filed by the tri al court, we imply that the trial court made all fac t findings necessa ry to support th e judgment

. Worfo r d , 801 S.W.2d at 109. II. The court ’ s determi nation of issues involving conservatorship , access, and possession between fit par ents is fact inte n sive and g uided by the best interest of the child.

“ S uits affecting the parent

- child relationsh ip are intensely f act driven, which is wh y courts hav e devel oped best

- interest tests that consider and balance numerous factors

. ” Lenz v. Lenz , 79 S.W.3d 10, 19 (Tex. 200 2)

. I n reviewing a trial court ’ s

conserv a torship determination , w e con sider the Legisl ature ’ s expressed public policy to ( 1) assure that ch ildren will have frequent and continuing

contact with parents who have s hown the ability to act in the best interest of the child; (2) provide a safe, stable, and nonviolent e n vironment f or the child ; an d (3) encourage parents to share in the rights and du ties of rai sing their child after the parents have separated or dissolve d their marriage.14

T EX
. F AM
. C ODE § 153.001 (a) ; see also Lenz , 79 S.W.3d at 14

. The court presumes that a ppointment of parents a s jo int managing co nserva tors i s in the best interes t of the child

. S ee T EX
. F AM
. C ODE § 1 53.131

. “ J oint managing conservatorship does not require the award of equ al or nearly equal perio ds of physical possession of and access to th e child to e ach of the j oint conservators. ” Id. § 153.135. Similarly, the

cour t m ust specify the rights and duties of conservatorship that each parent ma y exercise, and it i s not required to award these r igh ts equally or require that they be exercised join t ly. See id. §153. 071; Still well v. Stillwell , No. 03

- 17

- 00457

- CV, 2018 WL 502 402 2, at *4 (Tex. App.

— Austin Oct. 17, 2018, pet. denied) (m em. op.). When parents are a

ppointed joint mana ging conservator s, the court must designate the parent “ who has the exclusive right to determine th e primary r esidence of the child, ” either with or wit hout geographic limitations. T EX
. F AM
. C ODE § 153.134(b)(1 ).

“ The best i nterest of the child sh all always be the p rimary consideration of the court in determining the issues of conservat orship and posse ssion of and acce ss to the child. ” Id. § 153.002

. “ Th e trial court is given wide latitude in determining the best interests o f a minor child

. ” Gilles pie , 644 S.W.2d at 451

. The trial court may consider a non - exhaustive list of factors in ma king this determ ination, though it nee d not address all the factor s o r limit its inqui ry to these factors. See Payandeh , 2019 WL 2528197, at *5

– 6 (citing Holley v. Ad am s , 544 S.W.2d 367, 371

– 72 (Tex.15

1976) ) . The H

o lley factors include: (1) the desires of t he child; (2) th e emotional and physical needs of the child now an d i n the future; (3) the emotional and physical danger to the child now and in the future; (4) the par ental abilities of the individuals seeking custody; (5) the programs available to assi st these individua ls to promote the best in terest of the child; (6) the plan s for the child by these individuals or the agency seeking custody; (7 ) the stability of the h ome or proposed pla cement; (8) the acts or omissions of the parent which may indicate th at the existing parent

- child relationship is not a proper one; and (9 ) any excuse for the act or omissions of the parent. Holley , 544 S.W.2d at 3 71

– 72

. III. The trial court ’ s decision to name Mark as the parent with the right to designate W.B. ’ s primary residen ce and to appoin t him exclusive righ ts to make educational deci sio ns was supported by substan tive and probative evidence. On appeal , Shelb y argues that the court abused its discretion because its ruling was not supported by sufficien t evidence. She argues that Mark has b een controlling, manipulative, and derogatory. She ar gue s that Mark demanded more information without taking initiative to g ather information for himself. She argues that Mark ’ s failure t o support her during W.B. ’ s first two years of life i s significa nt. T hese arguments rely on Shelby ’ s testimony and view of the evidence , which was disputed by Mark ’ s testimony and other eviden c e. Our review is li mited by two legal standards: (1) because there are no findings of fact or conclusions of law, w e must assume th at the court found all disputed facts16

in favor of its judgment , and (2) the trial court , as factfinde r , was the sole arbiter o f the credibility of the witnesses and the w eight to be given the evidence

. Worford , 801 S.W.2d at 109 ; Nelson , 12 7 S.W.3d at 174

. What that means here is that w e are not permitted to view the eviden ce from the perspective that Shelby was truthful and Mark was not or to rely on ly on Shelby ’ s testimon y when it is disputed by substantive and probative evidence to the co ntrary. Similarl y, Shelby ’ s argument views certain evidence , which is favorable to her, as most significant, while ignoring

o ther evidence of a substan tive and probative nature that was more favorable to Mark. The trial court was not required to assign gre ater weight to S helby ’ s testimony that Mark was controlling, faile d t o seek information, spoke rudely to her , and failed
to b e supportive six

- to

- eight years before the final di vorce decree. Rather, the trial
court had wide discretion to give more weight to the substantive and probative evidence of Mark ’ s involv ement in W .B. ’ s l ife, advocacy for his learning differences, and enc o urag ement of W.B. ’ s relat ionship with Shelby. Shelby also argued on appeal that Dr. Mellor

- Crummey was biased against her and in fa vor of Mark. In particular, Shelby took issue with Dr. Mell or Crum mey ’ s providing ad vice to Mark throughout the evaluation p r ocess, her conclusion that Shelby had lied, her impression that Mark is aware of hi s faults, the blame she placed on Shelby for hin dering the proce ss, and the conj ecture that appeared through her f

req ue nt use of the word “ may ” in her report

. The custody17

e v aluation report is not the judgment, and other evidence of the underl ying facts that
Dr. Me llor

- Crumme y relied on was admitted at t rial. Finally, Shelby argue s that the Holley best

- interest factor s s how that the trial
court ’ s decree was an abuse of discre t ion. The Holley factors are no t exhaustive, and not all factors may be relevant in every case. See Smith , 2019 WL 2528197, at *5

– 6

. In this case, the Holley factors do little to differen tiate the abi lities of these two fit parents. Several Holley fac tors are not r e levant in this case which concerns d ivorced but fit parents : the emotional and physical danger to the child now and in th e future; the ac ts or omissions of the parent which may indicate t hat the existing parent

- child relationship is not a proper one; and a ny excuse for the act or omissions of the parent.
See Holley , 544 S.W.2d at 371

– 72

. Several Holley factors are neutral be cause both
paren ts are fit

. B oth parents have demonstrated that th ey can provide for the

emo tional and physical needs of W.B. now and i n the future . Both parents have demonstrated competent parenting abili tie s. Both p arents have provided W.B. with a stable home. Both pare nts have support systems in place to help ca re for W. B. For example, Shelby has used the programs available through th e public school to address W.B. ’ s dyslexi a , and she has r elatives nearby who are a support system for her and W.B. Mark ha s arranged for W .B. to attend a specialized private school that

ca n a ddress his d yslexia and dysgr aphi a, and his nearby friends, inclu d ing Jaime and her family , are a s upport system for him and W.B. Both parents have plans for W.B.18

to prom ote his best inte rest ; Mark ’ s pla n s include attending the Briarwood School and cont inu ing his practice of having W.B. call Shelby daily or nearly daily w hen in his possession. Shelby ’ s plans include using the resources available through a well

regar ded public school and co ntinuing visitat ion with Mark as has become routine for th is famil y. Alt hough W.B. is young

— eight years old at the time of trial

— the e v i dence indicate s something about his desires. The evidence show s that W.B. love s and both Shelby and Mark, and that his desire was for h is parents to stop fighting and get along. The evi den ce also show s that W.B. was most affected by his parents ’ disco rd

w hile in his mother ’ s possession

. This w eighs in favor of the trial cour t ’ s decree. Other factors

—

namely, public policy of the state

— are also relevant. The public policy of this state in clu d es assuring that children hav e frequent and continuing contact wi t h divorced but fit parents. Evidenc e at trial showed t hat Mark encouraged an d supported W.B. ’ s relationship with Shelby by ensuring phon e calls when in his possession, inviting Shelby an d h er parents to bir thday parties and other cele brations, agree ing to makeup visitation when inclement weather disr upted her
p eriods of possession, and by considering She lby ’ s summer vacatio n when choo sing his extended summer possession in order to maximiz e S helby ’ s time with W.B. The
pu blic policy of the state also include s encouraging parents to share in the rights and duties of raising their child after the dissolution of the marr iage. She lby and her19

pare nts sought to limit Mark ’ s contact with W.B., wher eas Mark supported W. B. ’ s relationship with Shelby . Shelby believ e d that phone call s from Mark were disruptive, but Mark encoura ged W.B. to call his mother. This weighs in favor of the trial court ’ s decree. Finally, due to W.B. ’s learning diff ic ulties , an othe r relevant factor is the
par ents ’ abilities to advocate for his educational needs. The custody evaluation
proce ss occurred contemporaneously with the educational evaluations of W.B. that the school initi a ted. Shelby opposed numerous ev aluations and int erve ntions because they were not specifically recommended by th e school , but Mark reached out to multiple res ources to determine what would help W.B. Although Shelby initially sought a referr al for an ADHD e valuation from W.B. ’ s pediatrician, when Dr. Mell or - C rummey sent a n ADHD screening questionna ire to W.B. ’s schoo l , Shelby directed the school not to cooperate

. This, too, weighs in favor of the trial
court ’s decree. C onclusion We conclude that the trial c ourt di d not abuse its discretion because it had suff icient evidence on which to base its decision and did not a c t arbitrarily. We overrule Shelby ’ s issue

. W e affirm the trial court ’ s final divorce de cree .20 Peter Kelly Just ice Panel consi sts of Chief Justice Radack and Justices Kelly an d Go odman.