I often have a parent ask me if, “If their 12-year-old child can
decide which parent they live with?” This is one of the biggest
myths in Texas child custody law.
In some states, the minor child may decide which parent he or she chooses
to live with. That is not so in Texas. A child does not have the right
to decide which parent shall have custody. In Today’s blog we will
discuss the law regarding a child’s preference and how a Court makes
its decision regarding child custody.
Should the Child Decide Custody?
In Texas, children who are at least 12 years of age can have a say in where
they will live, but a judge does not have to follow the child’s
wishes. It is wrong to assume a child has the right to get to decide where
he or she will live once they turn 12 years old.
The Family Code’s permissible interviewing mechanisms is found in
section 153.009. This statute allows the court to conduct precisely what
the section heading says, “interview of child in chambers.”
Tex. Family Code § 153.009.
The statute explains the purpose of the interview as being “to determine
the child’s wishes.” The Texas Legislature made the policy
choice that it is important for the child’s voice to be heard in
cases where the child’s future is being determined. However, the
judge was given discretion in how the child is interviewed. of the child
and the preference of the child does not diminish the discretion of the
Judge from determining what is in the
best interest of the child.
When does 153.009 applies:
- In bench trials before a Judge when a child is 12 years or older
- On a motion by one of the parties, the amicus, or on the courts own motion
The motion may be used when there is an issue of:
- exclusive right to determine the primary residence of the children, or
- possession and access to the child
The motion will also need to request:
- the persons who should be allowed to be present at the interview, which
may include both parties’ counsel, and the guardian ad litem, attorney
ad litem or amicus
- If a record is requested.
Weight Given by the Court to the Child’s Preference
The weight given by a court to the child’s stated preferences may
differ on a case by case or judge by judge basis. This means that a court
may not rule according to what the child expresses are their preferences.
It is important to understand that just because a child who is 12 year
old goes into the court’s chambers and tells the judge that he or
she wants to live with a particular parent or state the child’s
preference on other issues, this stated preference is not be controlling.
The courts will often consider other intervening factors when making its
determination regarding custody.
FACTORS THE COURT CONSIDERS IN DETERMINING CUSTODY
In Texas we do not have custody we have conservatorship. They are similar
and sometimes used interchangeably by Texas lawyers. However, when you
get to court the Judge will be quick to remind you that in Texas it is
When deciding who will be the “Primary Conservator” of the
children (the parent who gets to say where the children live and to receive
child support) a court looks at a number of factors. These factors include:
- The child’s age and preferences
- The relationship between the child and parents
- The relationship between the parents
- The child’s developmental, emotional, and health needs
- Each parent’s financial situation
- The living situations of each parent
- The parents’ health
- Any history of abuse or neglect
While the court’s decision a Trial will determine who will be the
“Primary Parent”, that decision is not necessary permanent.
Should there be a substantial change in circumstances, either parent may
petition with the courts for a modification.
I like to tell my clients nothing is done in regards to the children until
they turn 18 or graduate high school whichever comes later.
In some child custody disputes, the court may appoint an
amicus attorney, to help the court decide what is in the
best interests of the child. This is more likely to occur in a highly contested family law cases.
The amicus attorney is not there to voice the child’s custody wishes,
but to protect the child’s rights and interests in a custody dispute
Some things you can expect an Amicus Attorney to do include:
- Talking to the children and the parents
- Home visits
- Interviews with third parties, such as doctors or friends
- Attending court hearings or mediation
- Possibly sending out discovery
By doing these things, the
amicus attorney is trying to gather enough information to make a recommendation to the court.
Parenting Facilitators, Parenting Coordinators, and Parenting Courses
Many Texas courts require both parents to complete a co-parenting course
prior to the divorce or child custody case being finalized. In some cases,
a Texas court may appoint either a parenting facilitator or parenting
coordinator help the parents foster a co-parenting relationship.
The roles of a parenting facilitator and a parenting coordinator are similar.
Both parenting facilitators and parenting coordinators are used to assist
parents in resolving parenting issues.
Both parenting coordinators and parenting facilitators help parents:
- Identify problem areas
- Clarify priorities
- Reduce the number of misunderstandings
- Agree on dispute resolution methods
- Develop strategies to help collaborative parenting
- Understand and implement the possession and access provisions of parenting plans
However, there are differences between Parenting Facilitators, Parenting
Coordinators and Parenting Facilitators.
Some of the difference include:
- The work that the parenting facilitator is not confidential.
- Parenting facilitators can testify about their work with families
- Parenting facilitators often take more of a supervisory role to make sure
that parents comply with the parenting plan
- A parenting facilitator can make recommendations to the court and can be
called to testify in a judicial proceeding.
Unlike Parenting Facilitators:
- A parenting coordinator must fulfill their purpose through confidential
procedures and communication.
- The parenting coordinator cannot report anything to the Court other than
a statement of whether the parenting coordination should continue.
- A parenting coordinator is prohibited from disclosing information to the
Court that was obtained through parenting coordination.
- A parenting facilitator fulfills their role based upon procedures established
by the Court.
CUSTODY AGREEMENTS BETWEEN PARENTS
Parents do not have to resolve custody through court intervention. Agreement
resolves most family law cases. Many parents can co-parent and can decide
for their family what custody arrangements should be made. Often time
these arrangements can be made outside of court through alternative dispute
resolution such as mediation. In these situations, a professional mediator
will attempt to help parents establish common ground and how much weight
should be given to the child’s custody wishes.
If you want to know more about what you can do,
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