An 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.