When a Child Can Choose?

When Can a Child Choose Where to Live?

• When can a child decide where he or she will live?
• Can a child who is 12 years old or older decide which parent will have primary custody?
• What are the procedures for interviewing the child?
• Does the judge have to follow the child’s wishes?
• What factors does a judge consider in evaluating a child’s preference regarding custody?
• Can my child decide the details of visitation, such as which days and times visitation will occur?
• How can I get a judge to consider the custody preferences of a child under age 12?
• If a jury decides custody, how is a child’s preference considered?

When Can a Child Decide Where He or She Will Live?

In Texas, children who are at least 12 years of age can have a say in where they will live, but a judge does not have to follow the child’s wishes. It is absolutely wrong to assume or tell a child that they get to decide where he or she will live once they turn 12 years old. Once your child turns 18 and is a legal adult, then a custody order does not apply and they can decide where to live. The closer your child gets to age 18, the more he or she has a say.

Can a child who is 12 years old or older decide which parent will have primary custody?

The Texas Family Code no longer allows a child age 12 or older to sign a form stating which parent the child primarily wants to live with. Now, the only way for a child to directly express his or her preferences to a judge is to meet with the judge in the judge’s office or, in very rare cases, testify in court as a witness. The Texas Family Code Sec. 153.009(a) requires a judge in a nonjury trial or hearing to interview in chambers a child 12 years of age or older to determine the child’s wishes as to conservatorship or as to the person who shall have the exclusive right to determine the child’s primary residence. In other words, the judge must interview the child on the big issue of which parent will get primary custody. On the other hand, it is left up to the judge to decide if he or she wants to interview a child under age 12 about who the child wants to live with or to interview a child over age 12 about the child’s wishes as to the visitation schedule or other issues.

What are the Procedures for Interviewing the Child?

The judge cannot interview the child in chambers in a jury trial on the issue of which parent should decide where the child primarily lives. In a non-jury trial, it is up to the judge to decide whether or not to permit the attorneys to be present at the interview. If either party requests, the judge must have a court reporter in the judge’s office to record the interview with the child. The parents are not allowed in the judge’s office during the interview.

Does the judge have to follow the child’s wishes?

The judge does not have to follow the child’s wishes. Obviously, 12-year-olds and young teenagers want to do all kinds of things that parents will not allow them to do. A 13-year-old may really want to go to a certain concert, but the parent might decide the lyrics are too nasty or the time is too late and say “no.” By the same token, a judge might listen to a child’s wishes regarding custody and still say “no” because it is not in the child’s best interests to live primarily with that parent.

A judge, for example, wants to make sure that a child has not been bribed or threatened to select one parent over the other. Also, a judge wants to know why the child is choosing one parent (i.e. – is it because there are no rules to follow there?).

What factors does a judge consider in evaluating a child’s preference regarding custody?

Most judges will want to know why a child is selecting one parent over the other. Some kids want to live in the house with no rules and no chores. A judge will want to assess a child’s maturity and intelligence and, of course, decide independently which household is best for the child.

Can my child decide the details of visitation, such as which days and times visitation will occur?

Texas law does not give a child a formal role in deciding anything other than primary custody. A child cannot sign a form saying what days or hours he wants visitation to occur. However, a child’s wishes on the details of visitation can be considered by the judge either as a result of an interview in the judge’s office or as reported to the judge by the amicus attorney, a custody evaluator or the child’s counselor.

How can I get a judge to consider the custody preferences of a child under age 12?

A parent can ask the judge to interview the child in chambers. Two more expensive options are to ask for the appointment of a lawyer for the child (an amicus attorney) or for a custody evaluation by a psychologist. The child can tell the amicus attorney or the custody evaluator who he or she wants to live with and that will usually be reported to the judge. Another option is to take the child to a counselor who can be called as a witness in court. A counselor will usually be allowed to testify about what the child wants and why despite the rules against hearsay.

If a jury decides custody, how is a child’s preference considered?

In those rare and expensive cases in which a jury decides which parent has primary custody, a child’s form expressing a preference on primary custody cannot be shown to the jury. However, questions can be asked of parents and other witnesses that let the jury know with whom the child wants to live. Ordinarily, a child is not called as a witness in a trial but it can happen. The amicus attorney can let the jury know who the child wants to live with, as can a custody evaluator or counselor called as a witness.

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