One of the most pressing questions in a Texas child custody case relates to whether your child can express their opinion regarding custody and visitation issues. Picture this. You and your spouse are going through a difficult divorce. On the child custody side of things, several questions need to be answered. Where is your child going to live primarily? How much child support will be paid? Where is your child going to spend most of their year? What is the visitation schedule going to look like?
These are legitimate questions that need to be answered during your case. On the positive side, the courts in Texas allow parents every opportunity to negotiate through difficult subject matter. There are opportunities to negotiate throughout the entirety of your case. Both you and your spouse can spend time thinking about important issues in your case and making decisions about them. There are also options like mediation which bring a third party into the negotiating room with you.
In short, there are many options one we talk about working towards an amicable settlement. There is no requirement that the two of you create a court order based on what a judge thinks is best. Rather, you and your spouse think about the best interests of your children and make decisions based on those factors specific to your family.
What matters most in your Texas child custody case?
Ultimately, this is what you and your spouse need to answer as part of your family law case. It is not only a matter of making decisions that are the most reasonable. What matters the most is being guided by the best interest of your child. This is a legal standard that courts and parents alike use to make decisions on behalf of children. It attempts to take into consideration factors relevant both now and in the future.
It is up to you and your spouse to make decisions about what is in the best interests of your children. Even though the two of you likely do not agree on very much right now that does not mean you cannot negotiate with one another. No one is better suited to negotiate on behalf of your child than you and your spouse. This is true even during a difficult divorce case.
Working with an experienced family law attorney makes a tremendous difference when it comes to making decisions for your children. An attorney has the sort of experience and knowledge of important laws that make a difference in your case. We know that hiring an attorney is a short-term investment into your long-term future. Consider reaching out to the Law Office of Bryan Fagan today to discuss your case in circumstances.
Involving your child in a family law case
One of the most difficult challenges that a family can encounter in a case involves issues regarding children. We all want what is best for our children. Entering a family law case you likely have an idea of what is in the best interests of your children. However, your view on what is in their best interests may change because of your involvement in the family law matter.
It becomes apparent to many parents that what is in your best interests may not be in the best interest of your children. For instance, you likely want your children to spend as much time with you as possible during and after the family law case. However, this would come at the expense of your spouse and their relationship with their child. Children typically do better with next strong relationship with both parents. This may not allow you to max out your time with the kids but should improve their lives.
This brings us to another important issue of involving your child in the family law case. Certainly, you do not want your child to feel that he is having to choose between you and your spouse. That is the sort of stress which can harm the growth and development of your child. At the same time, understanding how the involvement of your child can impact your child’s life positively is an important step for their development, as well.
What is the typical role of a child in a family law case?
This is one of the more standard questions that the attorneys at our office receive. Namely, do children even play a role in most family law cases? If you ask different people, you are liable to receive different answers. A lawyer’s favorite answer to any question is: “It depends.” The truth of the matter is that it does depend on when it comes to how much children typically get involved in family law cases. Here are some things to think about when it comes to the involvement of your children in your family law case.
First, it is normal to feel hesitant about involving the kids at all. A family law case is stressful enough. You want to avoid a situation where your children feel like they are a ball being bounced back and forth between you and your spouse. Depending upon the nature of your case in this subject matter being discussed it may be best for them not to be involved at all.
However, in some situations, the involvement of your child may be warranted. Again, these are great questions to discuss in a free-of-charge consultation with the Law Office of Bryan Fagan. Our attorneys can take your specific circumstances and provide you with information about how the involvement of your child may impact the case. However, blog posts like this are a great way for you to begin learning more about how involving your child may work.
When does a child typically become involved directly in a case?
There is no set time for a child to become involved in a family law case. In truth, there are only one or two ways a child becomes involved directly in a family law case. First, if you or your spouse file a motion to have your child speak to the judge about conservatorship issues. The second is if the judge requests that him or herself. This second scenario does not arise very often. Therefore, expect that your child only becomes involved in the case when a spouse files a motion.
Parents are most interested in the opinion of their children when it comes to issues related to being a primary conservator. This means which parent determines the child’s primary residence and receives child support. As you can imagine, this is a contentious topic. Parents engage in negotiation on several subjects in a family law case. However, if primary conservatorship is one of those subjects, then the case is likely headed for a trial. There is very little middle ground on this type of subject in a family law case.
As a result, we see children involved in child custody cases sparingly. Most of the time parents like yourself do not want children involved in a case. There is too great a risk of having the children impacted negatively by their involvement. However, in cases where conservatorship of the children is involved, at least one parent likely wants the child’s opinions to be made known. This is where family cases get interesting.
Kids talking to the judge- what does it mean?
The most common way for a child to play a direct role in a child custody case is by providing an opinion on conservatorship to the judge. In a child custody setting, evidence is what matters. Having evidence admitted into the record of your case is how you sway a judge. Your child going before the judge to provide him with information is a way for your child to impact the case.
For instance, suppose that all factors in your case are very equal. Both you and your co-parent participate in the lives of your kids. Neither of you have any bad behavior in your past. You both earn similar salaries. On paper, the battle for primary conservatorship is a close one. However, what if your son had a particularly close relationship with you versus your wife? It makes sense that you want your child to voice his opinion on this.
Getting your child to express himself takes some planning. It’s not as if your son shows up to court one random day and talks to the judge. Rather, he needs to be part of a plan geared towards helping you achieve goals in your case. Working with an experienced family law attorney helps a great deal in this regard. Attorneys who specialize in child custody and divorce cases know what it takes to move a case forward and help families like yours.
When can a child talk to the judge?
We have already established that your child cannot pick a random day to come and talk to the judge. Rather, this needs to be thought out in advance as far as when the conversation occurs. You or your spouse can file a motion requesting that your son speak to the judge about his preferences on primary conservatorship. This preference would become part of the evidence considered by the judge.
A child under the age of 12 may be able to speak to the judge. That is if the judge grants the motion to speak to him. On the other hand, if your child is 12 years or older then he must speak to your child when asked to do so. There are reasons why a younger child is not given the right to speak to a judge. Younger children lack the perspective and maturity of an older child in most situations. Sometimes younger children are swayed in their opinions by silly things.
Think about whether this sounds familiar to you. Whichever parent is less strict in their discipline ends up being the “favorite” parent. Or the parent who cooks better has tastier snack foods, has a better gaming system, etc. Younger children are more likely to select a preferred parent based on situations that are not exactly objective. Older children tend to be more objective than younger kids.
What happens when your child talks to the judge?
This is the million-dollar question. When a judge has granted your motion to have your child speak to him there are some things to keep in mind. First, judges can tell if the child has been coached in any way. Kids are not easily coached, honestly. They tend to repeat things fine but are not able to understand why they are saying them. In other words, kids are not great actors. They are performers when it suits them. However, in other situations, your child is not a comfortable actor.
Kids are transparent when they are lying. In other words, it is easy to tell when your child is lying or has been coached. At this stage, the hay is in the barn. It makes much more sense to have your child come into the office without any coaching. Just speaking off the cuff and expressing themselves is a better plan for this testimony. Spending hours a day beforehand coaching your child to testify a certain way is futile.
When your child talks to the judge do not expect that the talk is going to sound like a therapy session. Judges are not set up to speak to children in this way. They are not childhood psychologists. The conversation is likely to be much more straightforward. Assess the strengths of the parents. Talk to the judge about how each parent impacts the child. Ultimately, arrive at an opinion about conservatorship on a primary basis.
How is the child’s preference utilized by the judge?
Your child’s preference for conservatorship is part of the evidence in a case. Note that it is not all the evidence considered. A judge makes decisions on primary conservatorship using a best-interest determination. The best interest of your child is determined by looking at a list of factors. Those factors are what matters when a conservatorship is considered. Different judges place different amounts of weight on evidence. The judge you get may be swayed very little or a whole lot by your child’s preference. It all depends.
What the judge surely (almost) will not do is consider your child’s preference to be the only or the most important factor. Again, children are young, impressionable, and swayed easily in many cases. Judges understand that your son or daughter may hold one opinion today and change that opinion tomorrow. This does not make your child a bad kid. Rather, it makes your child an adolescent who is growing up. For this reason, the opinions of your child are taken with a grain of salt and not thought of as the only relevant information.
The takeaway is that your child’s testimony to a judge is not under oath. Judges also understand the amount of pressure that your child is under just from participating in the case. As a result, we can expect that a judge does not want to harm your child in any way or put your child in a position that is against their best interests. After all, the entire purpose of the child custody case is to determine what is in your child’s best interests.
Final thoughts on children deciding where they want to live
Ultimately, being involved in a child custody case means that feelings may end up getting hurt. That is not something to dwell on, but it is reality. The more you focus on your child’s preferences rather than on other issues in your case the greater chance you have of pressuring your child in a way that is uncomfortable for him or her. Rather, understand that your child is under pressure whether you know it or not. The more pressure you place on your child the more your child will feel like he or she is responsible for some aspect of the case.
Instead of putting your child in this position why not do the hard work yourself and negotiate with your co-parent? Seeing parents forgo negotiation and focusing on a child’s preference is usually not a great strategy. Instead, think about how you can work to benefit your child even if it is slightly uncomfortable for you in the moment. We have all been in situations where the simpler solution is not the best one. In this case, that simple solution is but one piece of evidence.
Thank you for choosing to spend part of your day with the Law Office of Bryan Fagan. Our licensed family law attorneys look forward to the opportunity to speak with you about any questions you have about the material contained in today’s blog post.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. Interested in learning more about how your family is impacted by the material in this blog post? Contact us today.
Evan Hochschild was raised in Houston, TX and graduated from Cypress Creek High School. He went on to graduate from Southwestern University in Georgetown, TX with an undergraduate degree in Political Science. While in college, Evan was a four-year letterman on the Cross Country team.
Following in the footsteps of his grandfather and uncle before him, Evan attended law school after he completed in his undergraduate studies. He graduated from St. Mary’s University School of Law and has practiced in a variety of areas in the law- including family law.
Mr. Hochschild is guided by principles which place the interests of clients first. Additionally, Evan seeks to provide information and support for his clients with the heart of a teacher.
Evan and his wife have four small children together. He enjoys afternoons out and about with his family, teaching Sunday school at his church and exercising. A veteran attorney of fourteen years, Mr. Hochschild excels in communicating complex ideas in family law simply and directly.
