Can A Child 12 Years of Age Decide Which Parent They Want to Live With?

August 27, 2010  |  Posted by Evans Group Staff | Comments Off

It is all too common that after a final decree of divorce or custody, that at some point in time a child starts expressing their clear desire to live with the other parent on a primary basis.  There are many, many, many factors that may come into play when this occurs.

It is commonly misunderstood in Texas that a Child 12 years of age or older can “decide” with which parent they want to live.  This misunderstanding causes a lot of litigation and stress between parents and their children.  If not carefully monitored, this
can be abused by parents as they relate to their children going forward after divorce or a final custody order has been rendered by the Court.

What Texas law provides, however, is a method by which a Child over 12 years of age may have their wishes, desires, or opinions
known with regard to residency and primary conservatorship (i.e. which parent do they want to live with).  There could be many issues affecting this – age, school, travel for visitation, location of the other parent, extra-curricular or other options available to the child with the other parent.  The child’s “decision” or opinions are not, however, binding on the Court.  The court is always required to consider the entirety of the circumstances, what circumstances have changed since the rendition of the prior order of the Court, and whether or not in the opinion not the Court that the Child’s desires are in fact in the best interest of that Child.    Let’s face it, a 13 year old is not always the be judge to make these kinds of life altering determinations – despite their insistence they know everything.

This article is designed to give you a very a brief overview of the law in the State of Texas on how a child, under these circumstances, can express their preference and have their opinion heard by the Court.

Designation of Preference by Child:  Child’s Affidavit No Longer Available

In the recent past, there was a provision in the law that any child 12 years of age or older could sign a form known as a
“designation of preference” to live with the parent named in the designation.  This form would be filed with the Court and become the basis for a suit to modify the previous custody order and seek a change in primary conservatorship.    However, in 2009, the Texas legislature repealed this provision in the law due to many policy reasons – mostly the obvious of why having children sign off on such a form causes significant issues between the parties and their child or children.

Interviewing a Child

Instead, the Texas Legislature left in the law a provision which allows the Court to conduct an interview with the child to determine that child’s wishes.  This interview is conducted “in chambers”, or in the Judge’s private office or other private setting of the Judge’s choosing.   This only becomes an issue with primary conservatorship is an issue in the case.  If the parents are in agreement on primary conservatorship, an interview with the Child is not allowed.  The purpose of the interview, as stated in the family code, is to allow the Court to discuss with the child:  (1) the child’s desires with regard to residency and primary conservatorship, (2) visitation, or (3) any other issues which are involved in the underlying custody suit.

Is the Interview Mandatory?

For a child under 12 years of age, the interview is discretionary with the Court.  However, for a child 12 years of age or older, an interview is mandatory.

Who may Be Present During An Interview with Child

The court may, but is not required to allow the attorneys for the parties, if there is an attorney representing the child (amicus attorney or attorney ad litem), or the child’s guardian to be present during the interview with the Child.  If the child is 12 years old or older, the Court is required upon a request by any of the parties to the suit to make a record of the interview with the Child.  Usually, this is accomplished by the court bringing it’s court reporter into chambers to transcribe the interview with the Child.

What do I do If The Court Is Going To Interview My Child?

If you find yourself in a modification suit where the Court will likely interview your child in this regard, you must conduct yourself very, very, carefully as the Court’s are very savvy and can see through situations in which a parent is manipulating or acting inappropriately in this regard.

This is an opportunity which must be carefully considered and thought through, because we all know children can be fickle under these circumstances.  And, as you may be experiencing in your own situation, it’s sometimes hard to tell who is really pulling the strings – the children or the parents who are supposed to be parenting their children.  You should thoroughly discuss this with your attorney and carefully set forth a strategy for conducting yourself and in the presence of the Child prior to the interview occurring.

Remember, the court is always required to consider the entirety of the circumstances, what circumstances have changed since the rendition of the prior order of the Court, and whether or not in the opinion not the Court that the Child’s desires are in fact in the best interest of that Child.    So, the child’s preference – even if not in your favor – is not the end of the Story.  The Court will still consider the evidence in the case – such as the opinions of the Child’s therapist or counselor, teachers, friends and neighbors and other family members along with many, many other factors.

Therefore, if you are faced with a modification suit in which the child may be interviewed, you and your attorney should not rely solely upon the desires of the child.   I have personally been in situations where all the way up to the interview the child was expressing her desire to live with my client and changed her mind on the day of the interview.  Be prepared to present your entire case and convince the court, despite the child’s preference or including the child’s preference, the best interest of the child is to remain with your or begin living with the other parent.

Our Austin Child Custody Attorneys are experienced in child custody suits and modification suits affecting child custody.  If you are someone you know are facing a situation involving child custody, contact our Austin Child custody attorneys at the Evans Family Law Group today at (512) 628-2550 or email Mr. Evans directly at jimmy@evansflg.com.