At What Age Can a Child Choose – Part 2

August 2013

At What Age Can a Child Choose – Part 2

Last month I wrote on the choice of a child – or the rules in Texas for a child to be interviewed in chambers by a Judge with regards to a custody fight.  As promised, this month we are going to take up the effect of the child´s preferences on the court.

After determining that a child can talk to the Judge to express his/her desires, the natural follow up question is: “How much credence does the Judge give to the child’s desires?” The answer is that it depends on many factors such as: the age of the child, what the child wants and the reason, the intellect of the child or demonstrated ability to reason, and of course, just whether or not the Judge believes the child has been coached. Additionally, the Judge can, based on his or her opinions and beliefs on the matter, just not give too much weight to the child’s choices.

Never think that just because the child wants it, the Court will rule that way.  I generally explain to my clients that a custody fight is like a tennis match and it takes 100 points to be awarded the right to decide where the child lives. In other words, the first person to 100 wins and you can win in one of two ways. Build yourself up (earn points) or tear the other person down (take points from them). Hopefully you can now see the back-and-forth which is why I use the tennis match reference; that and basketball just did not seem to fit the analogy.

With this premise in mind, if the child wants to live with one parent, that parent has 50 free points before we start.  It does not mean the other parent cannot take those points or earn their 100 first, but it is a significant head start. DO NOT ASSUME the child will chose you and that your case is over. As I said, you are HALF-WAY to the finish line.

In fact, one of the hardest custody fights I ever handled involved three boys (triplets) and all three were adamant on living with the same parent but the Judge decided that it was best to split the children, two would live with one parent and the third would live with the other parent. The odd thing is, the Judge met with all three boys several times and acknowledged all three wanted the same thing – to live with Dad. The point is that the Judge has the last say and the Judge´s opinion is worth 100 points alone.

If you have read anything on my website or other blog entries, you no doubt have read at least one time that in a custody fight, the Judge is tasked with one primary concern – the Best Interest of the Children.  This is the prime directive in custody fights, it is not what Mom wants, nor what Dad wants and it is not what the child wants. The only concern of the Judge is what the Judge believes is in the best interest of the child, regardless of who asked for the ruling.

Custody is always a touchy subject, you should get competent local counsel to advise you.  Local counsel knows your judge (or at least his or her politics) and a local attorney can give more specific advice or information. Additionally, a local lawyer knows how the Judge has ruled in the past, and may know what kinds of questions the Judge will ask the child or at least how the interview will be conducted.

Finally, DO NOT EVER BRIBE THE CHILD to tell the Judge he/she wants to live with you. These things have a way of coming out and they will never come out at a good time. Yes, it is hard to compete if the other parent has a bigger house, a pool, cool friends and neighbors . . . . Trust your lawyer and your judge will make an issue of these facts, that the other parent is enticing the child, but whatever you do, be able to say you are acting in the best interest of the child.

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2 Responses to “At What Age Can a Child Choose – Part 2”

  1. Paul says:

    i have a son that turns 17 and is adamant about living with his father. Hes 16 however he turns 17 in Decmebr. I can tell you in my day 17 was the age o live on your own. How do courts justify not allowing my sons wishes?

    • royreeves says:

      I am not sure what you are asking but the child (even a 16 or 17 year old) does not get to “decide”. A child over the age of 12 can express a desire to the Judge and the Judge must “consider” the child’s desires in making a ruling. If your intent is to show the Judge that the child’s desires should have no evidentiary value – that is very difficult to do outside of showing the child’s motivation is coerced, bought off, or generally not very well thought out.

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