It is not uncommon for children to express a preference to live with one particular parent when the parents get divorced. But can a child choose who to live with in a child custody case? Do Texas courts consider the child’s preference when awarding custody rights?
The short answer is, "Yes, Texas courts do consider the child's wishes to live with one parent.” However, the court will not make its custody decision based on the child’s preference alone.
If your child says he/she to live with you or the other parent during a custody case, contact a Harker Heights child custody attorney to discuss your options.
Do Texas Courts Consider a Child’s Preference to Live with One Parent?
In Texas, all child custody decisions must be based on the standard known as “the best interests of the child.” The child’s best interests vary from one case to another, which is why courts consider a multitude of factors to make the most appropriate decision.
The child’s preference to live with one of the parents is one of the many factors that may influence the court’s decision. However, a child can choose who to live with when they reach a particular age.
Under Texas Family Code §153.009, a child must be aged 12 or older for their preference to live with one of the parents to be considered. While the court is not required to make the conservatorship arrangement based on the child’s wishes alone, it can consider their preference when determining what would be in the best interests of the child. (How Can a Parent Lose Custody in Texas?)
How Can Children Express a Preference to Live with One Parent?
If the child is 12 years or older, they can express their preference to live with one of the parents during an interview with the judge. Under Texas law, a child that is at least 12 years of age can be interviewed in a non-jury hearing or trial on any of the following matters:
- Who should be named the primary conservator
- Who should have the sole right to determine the child’s residence
- Who should have access to and possession of the child
What Happens During the Interview with the Child?
When a judge interviews a child on the matter who they want to live with, the parents should understand what will happen during the interview. Under Texas law, either parent or a court-appointed attorney representing the child’s interests can request the interview with the child.
If the child is 12 years of age or older when the request is made, the judge is required to conduct the interview. If a child is younger than 12, the judge can use their discretion to decide whether or not to conduct the interview.
The interview will be conducted by the judge in their office. In some cases, the parents’ attorneys and/or an attorney representing the child’s interests may be allowed to attend the interview to hear what the child is saying.
In addition, a court reporter may be used to transcribe the interview with the child who is at least 12 years old.
What Will the Child Be Asked During the Interview?
The primary purpose of the judge’s interview with the child is to understand why the child chose one parent over the other. Is it because one of the parents pressured the child to express their preference to live with them? Or is it because one parent treats the child better than the other?
During the interview, the judge will evaluate the child’s maturity, intelligence, and emotional capacity to make decisions of this nature. As for the questions asked during the interview, there is no list of standard questions that the child will be asked by the judge to determine whether or not to consider their preference to live with one parent.
The judge will ask a reasonable number of questions to understand
- why the child wishes to live with a particular parent and
- what custody arrangement would be in the child’s best interests.
In fact, in some cases, the judge may not directly ask the child who they want to live with. Instead, the judge will ask indirect questions to understand what would be in the best interests of the child.
Generally, the older the child, the more weight the court will give to the child’s wishes. If the child is not mature enough, they may not be capable of making sound decisions.
It is not uncommon for parents to pressure their kids to say that they want to live with them in an attempt to influence the judge’s custody decision. However, the judge will determine whether or not the child’s preference is based on the parent’s undue influence during the interview.
A Child Can Choose Who to Live with if They Are Emancipated
Children have a right to make decisions about who they want to live with when they reach the age of majority (18). However, a child can decide which parent to live with before turning 18 as long as the court declares them emancipated.
An emancipated child has the same legal rights as a child who reached the age of majority. Texas courts can declare a child to be emancipated when the following conditions are met:
- The child is a resident of Texas;
- The child is at least 17 years of age (or 16 if they are living apart and separate from their parents, conservators, or guardians); and
- The child is self-supporting and capable of managing their own financial affairs.
Schedule a Consultation with a Custody Attorney Near You
If your child wants to live with you or the other parent, you should consult with a child custody attorney to understand how the child’s preference will affect the court’s determination of conservatorship.
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