When Can My Child Decide Which Parent To Live With in Texas?

At What Age Can Children Decide Which Parent to Live With in Texas

Children are often left confused and anxious during divorce and custody battles.  In fact, there is a high likelihood that after a divorce is finalized, a child is going to express desire to live with a particular parent.  Despite how difficult the divorce may be for them, children cannot determine which parent they will live with after the divorce. It is up to the court to decide even in a situation where parents agree concerning child custody.

12 Years Old and Over

The law allows the judge to interview a child that is 12 years of age or older concerning custody.  During the interview, the judge will listen to the child’s wishes, desires and opinions regarding residency and primary conservatorship. However, the judge does not have to decide custody based on the child’s wishes or requests.  To determine where the child will live, the judge is expected to consider the following:

  • The entire circumstances involved in the custody case
  • The circumstances that have changed since the prior order was issued by the court
  • Whether the child’s desires are in the best interest of the child

It should be noted that the court is aware that a child that is 12 or 13 years old or even older can be manipulated by the parents. This is where parents may try to bribe or harass a child into expressing a particular view when the judge is interviewing the child. There are also instances where the child’s wishes or desires on who to live with, is based entirely on the parent who has the best gaming console or swimming pool in their home.

Interviewing the Child

The judge will interview a child that is at least 12 years old “in chambers” or in the judge’s private office, or other private setting chosen by the judge.  It is in the courts discretion to interview a child that is under 12 years of age. However, the law requires the judge to interview children that are 12 years old or older. Generally, the judge can only interview the child if the parents do not agree on who should be the primary conservator (the person who the child resides with).

The interview must not take place if the parents are in agreement about the primary conservator. During the interview, the court has discretion on whether to allow the parties’ lawyers to be present during the interview or not.  The divorcing spouses are allowed to request the court to make a record of the interview with the child. If the court agrees to this request, a court reporter will transcribe the interview in the chambers as the interview takes place.

Can children testify in court?

The court may appoint an attorney ad litem to gather information about the child’s life and best interests. This attorney will act as the child’s advocate but the child will not testify in a custody case.  So, as far as custody cases are concerned, expect a lot of complex situations that only an experienced attorney can help you navigate.

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