Can a Child Choose in a custody fight?

Child's choice in a custody fightAn extremely common question asked of child custody attorneys and divorce attorneys is:  At what age can a child choose which parent she wants to live.  The answer astounds many clients because the answer is “never”.  Now before everyone reaches for the keyboard to flash flame the author, think about it.

What the law allows, and in fact demands, is that a child who is at least 12 years of age may make his or her desires known to the Judge as long as the Judge is the person making the determination of with whom the child will live.

Texas Family Code 153.009 provides that in a nonjury trial or at a hearing, any party to the suit (that is either parent, any lawyer involved, any legal representative of the child, or the Judge himself) can make an application and the Judge must interview the child in chambers 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 for the child.  However, the code further provides at 153.009(c) that the interview “does not diminish the discretion of the court in determining the best interest of the child”.

As long as the child is twelve (12) years of age, the Judge has no choice in granting the interview.  If any party asks for the interview, the judge must conduct the interview.  If the child is under the age of twelve, the interview is completely at the discretion of the Judge.  I generally tell clients this means that if the child is close to 12, ask and hope, if the child is over 9 and there is a child over the age of 12 who is being interviewed, ask so that the 9 year old does not feel left out and the Judge is likely to grant the request.  Otherwise, if the child is under 12 (or under 9 and there are no other kids being interviewed) you are wasting your time to even ask.

In years past, the Family Code allowed a child of age (which seemed to change ever legislative session) to sign a form stating which parent the child primarily wants to live with.  The interview provision described replaced the form.  While I can only guess at the reason for the change, I can state from experience that under the prior rules, most children signed designations for both parents – clearly indicating they were pressured by one parent or conflicted, or just wanted to make both happy.  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.

Even if the Judge conducts the hearing, in Texas, a child’s decision cannot be the sole factor in determining which parent the child lives with. The public policy of Texas is to assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child; provide a safe, stable, and nonviolent environment for the child;  and encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.  (Texas Family Code 153.001)  Accordingly, a child’s desires may be some evidence, or some factor for the Judge to consider, the best interest of the child must always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.  (Texas Family Code 153.002).

Therefore, if the Judge conducts the interview, and he/she must conduct the interview only if the child s 12 years of age or older, the Judge will most likely want to know why a child is selecting one parent over the other to see if the child wants to live in the house with no rules and no chores or closer to a friend’s house, or because one parent has a pool or offered a car, or whatever.  Additionally, a judge will want to assess a child’s maturity and intelligence.  After taking all of this information along with the evidence provided by the parents, the Judge will then decide independently which household is best for the child.


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16 Responses to “Can a Child Choose in a custody fight?”

  1. Brandi Mackey says:

    How does one apply for the children to be heard by a Judge?

    • royreeves says:

      In Texas it is as simple as asking the Judge in open court. More practically, it should be a written motion filed with the Court in advance. The Texas Family Code provides that the Court must confer with a child over the age of 12 years if any party to the proceedings request the interview. The rule is short and simple and the procedural method is not defined. Most skilled family law attorneys know how the Judges they practice in front of prefer the Motion be filed and the children presented.

    • royreeves says:

      If there is an open case, just ask. If there is no open case, you have to have some pleadings before the court that give the judge reason to talk to the children and then ask. There is no set “form” though many attorneys have created and use a Motion to Confer.

  2. Michelle kolbe says:

    Can a 16 year old live with a paternal grandparent if she chooses

    • royreeves says:

      Please understand, the child does not get to “choose”. The child can advise of his or her preference and the Court must take that preference into consideration but that preference is NOT the determination even if it often looks and feels that way. A bigger issue in the question you ask is related to standing. Do the grandparents have standing to go into court and ask for custody? The grandchild’s wants in this regard have no effect. The grandparent must have the right to seek custody in his/her/their own name and right absent the grandchild’s expressed desires.

  3. AGILES says:

    What if you ask the judge and he refuses to talk to the children? One is a few weeks shy of 12 and the other is 10. We have substantial evidence of things going on at mom’s that he needs to hear however will not.

    • royreeves says:

      First, the Judge can refuse to talk to a child under the age of 12. The rules are clear, if any party request, the Court must confer with a child who is at least 12 years of age. If it is only a few weeks, can you wait that long and request it again? As for the younger child, that remains in the Judge’s discretion. The more expensive but often better option is to request an Amicus. If you have an attorney, he or she can advise more on this option. If you are trying to proceed without an attorney, this is a good time to consider hiring one so that he/she can look at the circumstances, analyze the evidence, determine how to best proceed (strategy) including whether or not an Amicus will help you and be cost effective or if there is a more cost effective means to get the information before the court.

  4. Courtney Adkins says:

    If there is no case and no lawyers involved yet, where do I start. My oldest will be 12 in July, younger will be 10 in June and they have both written letters to any judge that will listen so they don’t have to see their father. I just need to know where to start…the start line

    • royreeves says:

      The easy answer is to hire a lawyer that is local to you. The kids do not get to decide where they live, the can express a desire if they are at least 12, but it is not their choice and they do not ever get to decide they do not want to see the other parent. If I were the attorney on the other side, I would use those letters to argue that you coerced them to write the letters – children are not viable witnesses and a Judge will NOT ever read a letter from a child and give it any weight. The child can be interviewed but they do not get to submit written letters into evidence. But those letter can be used as evidence that you did something if there is a viable argument for that position.

  5. Elizabeth says:

    I wonder what kind of forms I need to file in Texas to get a 15 years old to decide whom he want to live with?

    • royreeves says:

      There is not a form per se. I file a written Motion for the Court to Confer but I do so because I also have an Order that I attach that has blanks for the Judge to put in a time and date, the rest of the Order instructs “the parent in physical possession at the time and date set out herein” to deliver the child to the Court for the interview. That is something that I created after a Judge pointed out it was not my choice of when and where and since I had brought the child (who was 16 at the time) to the Courthouse, I had interrupted the Court’s docket and every litigant and attorney in the courtroom had me to thank for the delay they were about to incur. That said, there is no official form that I am aware, every attorney Know has his or her own version and some attorneys just make a verbal request – it depends on the Judge and how he/she wants it done.

  6. Dear Mr. Reeves:
    Thank you for taking the time to address this issue. I am asked this question (what age can my child make a request to the judge) many times in counseling sessions with families going through custody issues. I will now be directing my clients to your website blog for answers as I tell them over and over, “I am not an attorney. Please contact your attorney with these types of questions. All I can tell you is what is stated in the Family Code…”
    Dr. S Stokes

  7. Romoyou says:

    How can I possibly open a case, when my child is going to turn 12 years old in about 3 months, and she’s been physically living with me for almost 6 months (she was given to me because the other party couldn’t care for her anymore)? I only have a temporary order that the other party signed so she can go to school near my house. I’m still paying child support because I haven’t gone to court yet. I can’t get my child health insurance because I am not the one with sole custody. How can I begin to request a judge to interview my child for an urgent issue to get her health insurance?

    • royreeves says:

      Your timing is impeccable. I had logged on to post a new blog on this very subject. You can find it here.

      The short answer to your question is file a Petition for Modification and do it sooner rather than later. The request for the Court to Confer with Child 12 Years of Age or Older (there is no set form, this is what I call the one I created) is filed either with the Petition (attached to or included as part of) or it can be filed separately. If the child does not turn 12 for three months, I personally would file it as a stand alone request. Either way, a Petition to Modify has to be filed and a Modification started.

      You wrote that you have had actual physical care and possession for almost six months, that alone is grounds for a modification. The Child’s desires, if she wants to remain with you, is also a reason for modification. It is important for anyone reading to know that a child’s desires do not decide the case, it is only one piece of evidence and depending on the Judge it can be a vital piece of evidence or it can be a small piece of the puzzle. This is just one reason a local attorney’s advice is always better than advice from a lawyer who is unfamiliar with your Judge and the local politics.

  8. Ryan Christy says:

    How can a parent live out of state but the child and Grandmother live in TX

    • royreeves says:

      I am not following the question? Did one parent live outside the state before the Court made a ruling? Did one side have a lawyer and the other not? Did you use “forms” you bought online or got at a local library? Simply put, the geographic restriction is presumed to be in the child’s best interest but someone has to ask for it, and then the other side has to prove it is not in the best interest and only the Judge knows why he or she decided one may or another. It is all very fact driven.

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