dissenting.
I respectfully disagree with the majority’s conclusion that the evidence was factually insufficient to show that appointing Stoney as primary managing conservator would be a positive improvement for T.D.C. While the majority correctly sets forth the standard of review for factual sufficiency challenges and acknowledges the abuse-of-discretion standard for review on appeal of modification orders, I do not believe the majority correctly applied the abuse-of-discretion standard.
Factual Sufficiency and Abuse of Discretion
When considering a factual sufficiency challenge, a court of appeals must consider and weigh all of the evidence, not just the evidence that supports the finding. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex.), cert. denied, 525 U.S. 1017, 119 S.Ct. 541, 142 L.Ed.2d 450 (1998). We can set aside a finding of fact only if it is so contrary to the overwhelming weight of the evidence that the finding is clearly wrong and unjust. Id. at 407. A court of appeals is not a fact finder and may not substitute its judgment for that of the fact finder, even if the evidence would clearly support a different result. Id.
When reversing a trial court’s judgment for factual insufficiency, a court of appeals must detail all the evidence relevant to the issue and clearly state why the fact finding is factually insufficient or so against the great weight and preponderance of the evidence that it is manifestly unjust. Id.; Ellis County State Bank v. Keever, 888 S.W.2d 790, 794 (Tex.1994). The opinion must explain how the contrary evidence greatly outweighs the evidence supporting the finding. Ellis, 971 S.W.2d at 407; Keever, 888 S.W.2d at 794.
However, when we review a suit modifying conservatorship, we are to apply an abuse-of-discretion standard to modification orders. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982). Under an abuse-of-discretion standard, legal and factual sufficiency challenges are not independent grounds of error, but are relevant factors in assessing whether a trial court abused its discretion. Compare In re H.S.N., 69 S.W.3d 829, 831 n. 1 (Tex.App.Corpus Christi 2002, no pet.); In re A.P.S., 54 S.W.3d 493, 495 (Tex.App.-Texarkana 2001, no pet.); In re J.E.P., 49 S.W.3d 380, 386 (Tex.App.-Fort Worth 2000, no pet.); Ditraglia v. Romano, 33 *878S.W.3d 886, 889 (Tex.App.-Austin 2000, no pet.); McGuire v. McGuire, 4 S.W.3d 382, 387 n. 2 (Tex.App.-Houston [1st Dist.] 1999, no pet.); D.R. v. J.A.R, 894 S.W.2d 91, 95 (Tex.App.-Fort Worth 1995, writ denied) (op. on reh’g), with In re D.S., 76 S.W.3d 512, 516 (Tex.App.-Houston [14th Dist.] 2002, no pet.); Norris v. Norris, 56 S.W.3d 333, 338 (Tex.App.-El Paso 2001, no pet.) (applying a two-prong analysis to sufficiency challenges in modification suits). We have, in the past, even waived these points of review when improperly raised under legal and factual sufficiency challenges. D.R., 894 S.W.2d at 95; Wood v. O’Donnell, 894 S.W.2d 555, 556 (Tex.App.-Fort Worth 1995, no writ.).
Because appellant has raised the trial court’s abuse of discretion in concluding that appointment of Stoney is in the best interest/positive improvement for the child, I agree we should address his contention. However, once we have reviewed the evidence for legal and factual sufficiency, we must determine “whether the trial court acted without reference to any guiding rules or principles; in other words, whether the act was arbitrary or unreasonable.” D.R., 894 S.W.2d at 95 (citing Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990)). In D.R. we also said that “[a]n abuse of discretion does not occur where the trial court bases its decisions on conflicting evidence.” Id. (citations omitted). Even more importantly, we also said, “[A]n abuse of discretion does not occur as long as some evidence of a substantive and probative character exists to support the trial court’s decision.” Id. (citing Holley v. Holley, 864 S.W.2d 703, 706 (Tex.App.Houston [1st Dist.] 1993, writ denied)). Thus, I believe the sufficiency of the evidence should be tested primarily under the abuse-of-discretion standard as opposed to just reviewing factual and legal sufficiency as the sole elements to this type of abuse-of-discretion review. The majority leaps to the conclusion that because it believes there is factually insufficient evidence to support the positive improvement/best interest finding, there is automatically an abuse of discretion. It provides no analysis of how the court abused its discretion despite the conflicting evidence.
In conducting an abuse-of-discretion review of the evidence, we should look to the Holley factors to determine the positive improvement/best interest prong in a modification suit. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.1976). Under the Holley factors we look not only at the three factors identified by the majority opinion, but we may also consider the other six Holley factors if applicable. Additionally, we may consider other relevant factors as the Holley list is nonexhaustive. Id.
The nine factors identified in Holley include: (1) the desires of 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 plans for the child by the party seeking the change; (5) the stability of the home or the proposed placement; (6) the parental abilities of the individuals seeking custody; (7) the programs available to assist these individuals and to promote the best interest of the child; (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. Id. The Holley factors are relevant for determination of what would be the best interest/positive improvement for the child. See Majority Op. at 873 & n. 6 (citing Turner v. Turner, 47 S.W.3d 761, 767 (Tex.App.-Houston [1st Dist.] 2001, no pet.)).
In this case the trial court found:
*8791. The circumstances of [T.D.C.] have materially and substantially changed since the rendition of the Paternity Order dated December 20,1995.
2. The circumstances of [MARTINA] have materially and substantially changed since the rendition of the Paternity Order dated December 20, 1995.
3. The appointment of [STONEY], a non-parent, and [TONY], a parent, as joint managing conservators of [T.D.C.] would be a positive improvement for and in the best interest of [T.D.C.].
4. The designation of [STONEY] as the joint managing conservator with the exclusive right to establish the child’s primary residence in Tarrant County, Texas, and to make educational decisions for the child would be a positive improvement for and in the best interest of [T.D.C.].
5. [STONEY] had actual care, custody, control and possession of [T.D.C.] for a period exceeding six months immediately preceding the filing of the suit.
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7. [MARTINA] voluntarily surrendered actual possession, care, custody and control of [T.D.C.] to [STONEY] on or about June 1,1997.
8. [TONY] relinquished actual care, control and possession of [T.D.C.] to [MARTINA] and [STONEY] on or about February 17, 1996, and this relinquishment continued unabated, until [TONY] requested appointment as [T.D.CJ’s managing conservator on July 6,1998.
9. [TONY] had reason to believe, and did believe, that [MARTINA] intended for [STONEY] to assume the role of [T.D.C.] ’s father at least as early as February 17, 1996, and [TONY] voluntarily agreed and acquiesced to [STONEY] actin [sic] as [T.D.CJs father until July 6, 1998, thereby relinquishing all of [TONYj’s rights to actual care, control and possession of [T.D.C.] to [STONEY] for that period of time.
The trial court concluded:
1. [STONEY] and [TONY] should be named joint managing conservators of the child with the rights and duties stated in the judgment, including [STONEY] having the exclusive rights to establish the child’s primary residence in Tarrant County, Texas, and to make educational decisions for the child.
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3. This proceeding is governed by Chapter 156 of the Texas Family Code and the parental preference therefore does not apply.
In our review of the factual sufficiency of these findings, we must consider all the evidence and if concluding the evidence is factually insufficient we must state why it is insufficient or so against the great weight and preponderance as to be manifestly unjust, why it shocks the conscience, or why it demonstrates bias. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986) (op. on reh’g).
The facts show that T.D.C. was born on June 28, 1994. Eight months later Martina had to file a petition in court to establish that Tony was T.D.C.’s father. At the conclusion of the paternity hearing, Tony was named the child’s biological father and possessory conservator and ordered to pay child support of $229 per month to Martina, the managing conservator, beginning on January 1, 1996. The trial court found that Tony had not provided support for T.D.C. from birth until the hearing and awarded the attorney general $2,501 in *880retroactive child support under family code chapter 231. Tex. Fam.Code Ann. ch. 231 (Vernon 2002). Tony was also granted limited visitation while the child was an infant, expanded to standard visitation when the child reached three. The trial court signed this order on December 20, 1995.
The majority acknowledges that Tony had no contact with T.D.C. from February 17, 1996 until July 6, 1998. At the time of trial in May of 2000, nearly four years later, the trial court again found Tony to be in arrearages to Martina in the amount of $1,950.1 I now turn to a discussion of the Holley factors.
The Holley Factors
The Desires of the Child.
The majority concludes, based upon one surreptitiously recorded conversation, that T.D.C. did not want to live with Stoney and that this evidence is uncontroverted. As appellee points out in his motion for rehearing, Tony recorded the conversation with T.D.C. one week after T.D.C. had been moved back to Stoney’s after the trial court’s reconsideration of Stoney’s petition for habeas corpus. Tony admitted that he and his wife, Lawanda, had been discussing the custody case with T.D.C. More importantly Lawanda testified that T.D.C. has said he wanted to live with both Stoney and Tony. Thus, the evidence of the child’s desires are not uncontroverted as stated by the majority. The child desires to live with both of his fathers.
The Emotional and Physical Needs of the Child Now and in the Future and Parental Abilities of Individuals Seeking Custody.
The second Holley factor gives consideration to the emotional and physical needs of the child now and in the future. Holley, 544 S.W.2d at 371-72. The sixth Holley factor, the parental abilities, is closely tied to this factor so I will discuss them together. I believe there are two clear and distinct bases for this factor to weigh in Stoney’s favor.
First, the need for permanence is “a compelling consideration.” In re S.H.A., 728 S.W.2d 73, 92 (Tex.App.-Dallas 1987, writ ref d n.r.e.). This court has previously stated that “it is a positive improvement, as a matter of law, for the child’s domiciliary status to no longer be in limbo.” Bingham v. Bingham, 811 S.W.2d 678, 681 (Tex.App.-Fort Worth 1991, no writ) (emphasis added). The need for permanence is the paramount consideration for the child’s present and future physical and emotional needs. Dupree v. Tex. Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81, 87 (Tex.App.-Dallas 1995, no writ). This fact alone, is enough to support the trial court’s appointment of Stoney as the joint managing conservator with primary rights. T.D.C. had always known Stoney as his father. Since T.D.C. had known Stoney as his father and because he had lived with Stoney, Martina, and their other children virtually all his life, this factor favors greater emotional benefit to T.D.C. by living with Stoney. He had developed bonds with the other children he had grown up with, which could also affect his emotional needs.
Secondly, while the voluntary relinquishment of the child is not a sole factor in this case because this is a modification as opposed to a termination, voluntary relinquishment must be of paramount importance in the evaluation of the child’s emotional needs. Compare Tex. Fam.Code *881Ann. § 153.373 (Vernon 2002) with Tex. Fam.Code Ann. § 156.101 (Vernon 2002). In this case the trial court found that Tony voluntarily relinquished T.D.C. to Martina and Stoney in February 1996. This was just two months after the court had first established paternity in Tony and ordered Tony to pay child support beginning in January 1996. Tony did not try to exercise his visitation rights until he responded to Stoney’s suit to change managing conservatorship from Martina to Stoney on July 6, 1998, over two years later. The facts further show that while Stoney’s suit was pending Stoney worked with Tony to set up some visitations with T.D.C.
In September of 1998 Stoney and Tony reached a temporary settlement giving Stoney primary rights over T.D.C. and giving Tony visitation rights. Tony was given specified visitation rights that he exercised for a seven month period. However, during one such visit, over the July 4, 1998 holiday, Tony refused to return T.D.C. to Stoney, despite the agreed orders. Stoney had to file a writ of habeas corpus to obtain T.D.C.’s return. During the pendency of Stoney’s and Tony’s suit to modify, the Johnson County court entered additional temporary orders, this time naming Tony as Temporary Managing Conservator and Stoney as Temporary Possessory Conservator on July 23, 1999 despite his order previously granting Stoney’s writ of habeas corpus on July 7, 1999.2 Stoney filed a motion to reconsider the denial of habeas corpus with the Tarrant County court on October 28, 1999, seeking again to enforce his rights under the September 3, 1998 agreement he and Tony had reached. On November 22, 1999, the Tarrant County court granted Stoney’s writ of habeas corpus and reinstated the parties’ September 3, 1998 agreement by written order dated November 23, 1999.
I believe this is more than factually sufficient evidence to show that the emotional and physical needs would best be met by the party who had raised the child and supported the child, as opposed to the party who originally denied paternity, relinquished the child two months after paternity was established, and made no attempt to contact or see the child for the next thirty months. These same facts also substantially weigh in Stoney’s favor regarding his stability over Tony’s.
Emotional and Physical Danger to the Child.
Again, I believe the emotional danger to the child is greater if placed with a party who has chronically failed to establish a relationship with the child, failed to continuously support the child, and who has refused to return the child at times ordered by the court. As to physical danger the majority cites to a few incidents, which are quite serious, but apparently did not even occur at Stoney’s home, but occurred at his relative’s home when T.D.C. was not present in 1996. As to alleged physical abuse, there is no evidence indicating any abuse other than some photographs taken by Tony that were just as likely indicating normal childhood injuries. No one testified that Stoney had ever abused T.D.C. and neither Tony nor his wife, Lawanda, ever reported any abuse.
Plans for Child by the Party Seeking the Change.
Further, Tony was originally named a possessory conservator in Martina’s suit to establish paternity but made no attempt to *882see T.D.C. from February of 1996 until July of 1998. This is some evidence of inability to follow through with plans for the child. Contrarily, Stoney has shown continuous ability to provide for the child’s welfare and education. I believe this factor weighs in Stone/s favor.
Stability of the Proposed Home.
I also believe this Holley factor weighs heavily in Stone/s favor. Stoney had actually already proven he could care for T.D.C. He had continually been the primary caregiver for T.D.C. since Martina left T.D.C. with him in June of 1997. He had also shown a willingness and ability to work with Tony as evidenced by his abiding by the visitation schedules. Further, Stoney had never abandoned T.D.C. as Tony had and Stoney had never refused to follow court orders regarding visitation as Tony had.
Programs Available to Assist the Individuals Seeking Custody.
No evidence was admitted regarding this factor so it does not apply.
Acts or Omissions of a Parent Which May Indicate that the Existing Parent-Child Relationship Is Not Proper and Any Excuse for the Acts or Omissions of the Parent.
In connection with this Holley factor, Tony conceded he did not exercise the visitation awarded him via the paternity order. He understood that he had to complete each level of visitation before he could reach the next level of increased visitation. Tony’s only excuse was that Martina required him to visit T.D.C. at her house for the supervised visits. He had a few other conversations regarding his visitation but never attempted further contact after the February 17, 1996 phone conversation. He admits he knew that Stoney was watching after T.D.C. He said he knew where Martina lived the entire time. Further, although Tony had primary custody of T.D.C. from July 1999 until November 1999 he never bothered to change his child support requirements; he just stopped paying them to Martina.
Also, at T.D.C.’s birth, Tony refused to give Martina medical history information despite a concern that T.D.C. might have had cystic fibrosis until another family member called him and asked again later.
The evidence also showed that Tony refused to attend a parent-teacher conference required by T.D.C.’s teacher because Stoney and Julie were to be there too. Instead, he went on another day. I believe this is more than sufficient evidence to show that this Holley factor weighs in Stoney’s favor.
Conclusion
I believe all the applicable Holley factors, combined with Tony’s lack of involvement with his son for thirty months, support the trial court’s appointment of Stoney as a positive improvement and in T.D.C.’s best interest. This suit is really a suit to modify legal managing conserva-torship so that it matches the child’s reality: the child had lived with Stoney and his other children for virtually his entire life and Tony had never consistently visited or supported his child. Thus, I would conclude that the evidence supporting the finding that appointing Stoney would be a positive improvement is not so weak and that the evidence supporting a contrary finding is not so overwhelming as to justify a new trial. Further, I do not believe we can say that the trial court abused -its discretion because there is more than some evidence of a substantive and probative character to support the court’s decision. Likewise, I believe we cannot say the trial court’s decision was arbitrary or unreasonable. See D.R., 894 S.W.2d at 95.
*883For the foregoing reasons, I do not believe the trial court abused its discretion and therefore, I respectfully dissent. ,
. The majority acknowledges Tony’s failure to pay this amount but justifies it on the basis that Tony only failed to pay during the short time he had custody. This is still a violation of a valid child support order that had not yet been modified.
. The order in the record shows the writ was granted on July 7, 1999. However, both parties recite in their pleadings that the Johnson County court denied Stoney’s petition on July 9, 1999. In any event, the case was transferred to Tarrant County on or about October 6, 1999.