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Can a Child Pick Which Parent to Live with in Texas?
by Taylor Smith

Custody matters can be particularly hard on the children involved. In custody disputes, especially those involving teenagers, it is common for a child to express his or her desire to live with one parent on a primary basis. However, it is frequently misunderstood in Texas that a child 12 years or older can “decide” which parent they want to live with.

A child may favor the parent who buys he or she more toys and has fewer rules over the parent who works hard to enforce boundaries and help that child grow into a healthy adult. That is why Texas does not allow children to make custody decisions, including choosing where they want to live after divorce or upon modification of a prior order.

The Texas Family Code section that deals with a child being able to choose a parent to live with is found in §153.009. This is the new statute and repeals the old law found in §153.008. §153.008 allowed a child 12 years of age or older to submit their preference to the court in writing. The judge would then take the written preference as evidence and determine where the child should live based on his or her best interests. §153.008 did not state that a child could choose which parent he or she wanted to live with, rather, if the child’s choice had a significant bearing on his or her best interest, the judge might place the child with the parent he or she requested. This Texas law was repealed because in most cases, both parents would get the child to sign a written preference choosing them, which put the child squarely in the middle of the litigation and defeated the purpose of submitting a preference in the first place.

In 2010, §153.008 was repealed and replaced by §153.009—a new statute that still lets children have a voice, but in a different format. Under §153.009, a child who is 12 years old or older can speak with the judge in person. In most cases, one or both of the parents submit a request for the child to speak with the judge.

If there is an issue of which parent should be awarded primary conservatorship, the judge can conduct a private interview with the child in the judge’s chambers. During this private interview, the judge can 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 case.

If a parent requests the judge to interview a child and that child is over the age of 12, the interview is mandatory. If the child is under the age of 12, an interview with the child is discretionary with the court, meaning the judge does not have to conduct the interview.

The parents of the child are not allowed to be present in the judge’s chambers during the interview. Additionally, the court is not required to allow any attorneys, for the parties or the child, or the child’s guardian to be present during the interview with the child. However, upon a request by any of the parties to the suit, if the child is 12 years old or older the court is required to make a record of the interview. This is usually accomplished through the court’s court reporter transcribing the interview in chambers.

In some circumstances, a judge may appoint an amicus attorney to the case. An amicus attorney’s sole purpose is to assist the court in determining the best interests of the child involved. The amicus attorney will conduct interviews of the child as well as other individuals involved in the child’s life.

At the end of the day, a judge is not bound solely by what a child says. Again, when children are involved, the court will try to do what is in the best interest of the child, regardless of that child’s wishes. The court is 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 the child’s desires are in fact in the best interest of that child. The child’s preference 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. As a result, if you are resting your case primarily on the testimony of a child, you are taking a huge risk.

It is important for parents to remember their children are not pawns in a custody case. Many judges do not want parents involving children in the stress of litigation and will see through one parent using a child against the other. Additionally, most judges can tell when a child is coerced, pressured, bribed or coached by a parent. If you are going through a custody dispute, it is best to remember to let kids be kids and let the adults handle these matters as adults.