Last Updated on April 12, 2022 by Benson Varghese
Child custody disputes can be extremely emotional for everyone involved. It’s not uncommon for a child, especially a teenager, to express a desire to live with one parent over the other. In Texas, a child is not allowed to unilaterally make that decision. However, there is a mechanism in place in which they can make their wishes known to the judge. In this article, we will discuss how a child’s custody preference factors into custody proceedings and answer some frequently asked questions about this contentious subject.
Can’t a child 12 or older choose which parent to live with in Texas?
This is a common misconception. More than a decade ago, courts allowed a child age 12 or older to sign a form known as a “designation of preference.” This form allowed the child to specify the parent with whom he or she wanted to live. That law - specifically 153.008 of the Texas Family Code - was repealed, however, because both parents would often convince the child to sign a written preference, which put the child in the middle of the custody battle and defeated the purpose.
What is the current Texas law regarding a child's custody preference?
The law that addresses a child’s custody preference can be found in 153.009 of the Texas Family Code. It allows a child age 12 or older to meet with the judge in chambers to express his or her wishes. During this private interview, the judge can discuss with the child their wishes about primary conservatorship, visitation or any other issue affecting the parent-child relationship. It’s important to point out that the judge doesn’t have to adopt the child’s wishes. However, it’s a good opportunity for the judge to assess the child’s maturity level and evaluate their ability to make sound decisions and judgment.
Is the judge's custody interview mandatory?
If a parent requests the family court judge to interview a child over age 12, then the judge is required to do so by law. If the child is under age 12, however, it is discretionary, meaning the judge can decide whether or not to interview the child.
Will the court consider a child’s custody preference?
Yes, the court will take into consideration a child’s custody preference, but it is only part of the equation. Texas law specifically states that “the best interest of the child” must be the court’s primary consideration when determining issues of conservatorship (child custody) and possession and access to the child. To guide judges, the Texas Supreme Court, in the case of Holley v. Adams, provided a list of factors for judges to consider when making custody decisions. They are often referred to as the “Holley Factors” and include:
* The child’s desires
* The emotional and physical needs of the child now and in the future
* Any emotional and physical danger to the child now and in the future
* The parental abilities of the individuals seeking custody
* The programs available to assist the parents
* The plan for the child by these individuals
* The stability of both parties’ homes and any acts or omissions of a parent which may indicate that the exciting parent-child relationship is not a proper one
* Any excuse for the acts or omissions of a parent.
When can a child decide which parent with whom to live?
Children can decide which parent with whom to live when they turn 18 and are no longer considered a minor. This is also the age at which they can refuse visitation with a parent. Before that age, it will be up to a judge to make that decision if the parents can’t agree.
Seek Guidance from an Experienced Child Custody Lawyer in the Fort Worth Area
At Varghese Summersett Family Law Group, we understand how emotional and contentious child custody disputes can be. There is nothing more important than your children. Our team provides compassionate legal guidance, while fiercely advocating for you and your children. We will do everything in our power to achieve the best possible outcome. Call 817-900-3220 to schedule an appointment with an experienced North Texas child custody attorney.