Child’s choice in a custody fight

Portrait of mother hugging daughter while father stands in the distanceI have already written two articles on this subject but it is so important and the question is presented so often that I am compelled to write a third installment on the the issue of a child’s decision or choice in a custody fight.  If you have not read the other two articles, you can find them at:

I suggest you read each of these articles in order to get the full context, though this discussion on the evolution of the child’s choice probably should have been the first article on the topic.  It is written here, as a third installment because I have had several questions lately wherein the client had out of date information or, as one client put it “last time she took me to court I was told . . . .”  Accordingly, a little history lesson seems prudent.

Evolution of the child’s choice in Texas

In years past, the Texas Family Code provided that a child over a certain age could sign a choice of managing conservator document that the Court would take into consideration in determining custody.  This age has varied from one legislative session to the next, sometimes it would be 10, then change to 12, or 14, until the next legislative session at which time it would change again.

For those that do not keep up with the Texas Legislature – our legislature holds session for a couple months every other year.  I promised my wife to stay off my political soap box in this forum, so I will refrain from the obvious question of why we pay them for the other 22 months of the term.  Suffice it to say, as I get back on topic, the age changed every other year always in an odd numbered September.  Since the legislative session just ended – a topic for another blog article – I simply cannot contain my enthusiasm waiting to see what changes are in store effective September first of this year.

The problem with the “Choice Statement”

The problem with the Choice Statements is that parents know best how to get their kids to sign something.  Generally speaking, children would sign two choice documents, one for each parent if asked.  This is either because: (1) the child did not want to make a choice; (2) guilt of choosing one parent would cause them to sign the second; (3) guilt induced by one parent would cause the child to sign one or both; or (4) the child simply wanted to please both parents.  There are, of course, multiple other reasons and factors, such as the child did not understand, was not told what he/she was signing, etc.  The effective result however was fairly common, with rare exception the court received two choice statements, one choosing each parent.

In the 2009 legislative session, our lawmakers finally fixed the problem.  The 2009 version of the Family Code did away with the “choice statement” and replaced it with the following:

“In a nonjury trial or at a hearing, on the application of a party, the amicus attorney, or the attorney ad litem for the child, the court shall interview thin chambers a child 12 years of age or older and may interview in chambers a child under 12 years of age 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.”  TFC 153.009(a)

The effect of the 2009 change is that where before, parents would talk to the child and bring a written statement as to what the child wanted, the Court now must (the word “shall” is interpreted as mandatory under the cannons of construction) interview the child if he or she is at least 12 years old and any party to the proceedings request the interview.  In fact, the Court may even exercise it’s right to interview on the Court’s own motion, meaning that even if no one asks, the Court still has authority to tell someone to bring the child to the interview.  The only limitation on this “mandatory” requirement is if the case is being submitted to a Jury.

When the Jury is making the determination of which parent will be appointed the parent with primary custody (that is the right to decide where the child lives) there simply is no benefit to have the Judge talk to the child and it would be irresponsible to make a child meet and interview with 12 strangers regarding a personal family matter.  Which raises a legitimate question, why can’t the Judge talk to the child and tell the jury what the child wants?  Simple enough – because the average juror would understand such an action as the Judge telling the juror what to vote.  Accordingly, if the issue is submitted to a jury the parent with whom the child wants to live must find a way to get that information to the jury.  (The reason for going to a jury in a custody fight, and how to get the child’s election in front of the jury is the subject of a future article – stay tuned.)

Effect of the child’s expressed desires on custody matters.

How much weight does a court give to the child’s preferences.  That all depends upon the child, how articulate he or she is, any reasoning they give to the Judge, whether or not the Judge thinks the child has been coached, etc.  However, it is some evidence and I like to explain it like this.  Assume you are involved in a sport that is won by the first party to reach 100 points.  In this game, you can either earn points yourself or take points from the other side.  With this in mind, the child’s choice is like 50 free points to the side he or she chooses.  It does not mean that side will ultimately prevail, but they are half way there with little or no effort.  Just keep in mind, at the end of the day, the golden rule of child custody is “Best Interest of the Child” not what the child wants.

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