One of the most common requests that I will field from a new client with the Law Office of Bryan Fagan, PLLC is to have their child be able to be interviewed by the judge in the event that determining where their child will live primarily is an issue of their case.
The thought beyond the request is usually that our client has confidence that their child is going to voice their opinion that he or she would like to live with our client primarily. Once this is done, the judge will announce that the case has concluded and then we can all go home. A neat and tidy end to a child custody or divorce case, right?
Not so fast. Although the above scenario is theoretically neat and tidy the actual manner in which a judge interviews a child about their preference in living with mom or dad does not go quite like the above example. Whether you have heard from friends or family members about the possibility of your child speaking to the judge or have been introduced to the subject by reading the opening paragraph to this blog post, the fact remains that this is an area of the law in Texas family law that has a great deal of nuance to discuss.
I would like to take the opportunity to discuss the factors that lead to a child being able to speak to a judge about their preference on with which parent he or she would like to live with primarily as well as the ultimate effect of their doing so.
What is the basis for a judge interviewing a child?
The Texas Family Code addresses this situation by allowing for the interview of a child in the judge’s chambers (office) to determine the preference of the child as to which parent he or she would like to reside primarily with. The law doesn’t state that only this question can be addressed, but others such as possession, access and visitation can be discussed at the judge’s discretion.
At the request of you or the opposing party, if your child is over the age of twelve the judge must conduct an interview in his or her chambers. If your child is under the age of twelve then it is up to the judge as to whether or not the interview will take place. Finally, if a request is not made of the judge to interview the child, in the form of a Motion to Confer, it is almost certain that no court would interview the child under any circumstances.
Can anyone besides my spouse and I request that the judge interview my child?
On occasion an amicus attorney is appointed to a divorce or child custody case. The amicus attorney acts as the eyes and ears of the court when court is not in session. He or she will conduct interviews of yourself and your spouse (or ex spouse) and will report back to the judge regarding the home life each parent offers as well as any other factors deemed important for your case in particular.
Who can be in the room during the interview?
The judge has free reign to allow any attorney involved with the case in their chambers during the interview. By the same token, the judge may decide not to allow anyone in the room during the interview and instead choose to conduct the interview in private.
How much weight will a judge give to the child’s preference as to where he or she lives primarily?
Ultimately the judge has the final say in any matter relating to where the child lives or any other decision regarding the child. What needs to be considered by the judge is what is in the child’s best interests. There are many factors outside of what your child wants to do that the judge needs to consider. Obviously, your child is just that- a child, and their opinion on what he or she wants to do should be listened to but should not be given the most weight above and beyond the totality of your case and its circumstances.
The judge will look at the age of your child as well as their perception as to how mature the child is. A younger child who exhibits maturity in their answers and persona may be just as likely to impress the judge as an older child who isn’t as composed or mature. If your intent is to have the court interview your child my suggestion would not be to coach the child in any respect. You can almost bet on the fact that your judge will ask your child if either parent spoke to him or her prior to the interview to discuss answers or anything having to do with the case.
Is the judge interviewing your child a good idea or bad idea?
Obviously a great deal depends on the specific circumstances of your case. However, if you think that having your child speak to the judge directly about where he or she wants to live primarily will wrap your case up with a nice bow I can almost assure you that will not be the case. First of all, a judge is not a therapist and most likely will not enjoy interviewing your child. The judge has a tough job in making a decision about custody, possession, access, child support, etc. and interviewing the child has never seemed to help make that job easier. Your attorney will be able to help guide you in this subject but from my experience getting your child involved in the divorce or child custody case may not have the end result that you anticipated at the beginning of your case.
Contact the Law Office of Bryan Fagan, PLLC for a free family law consultation
If you have any questions about your child potentially speaking to a judge or any other subject in family law please do not hesitate to contact the Law Office of Bryan Fagan, PLLC. A consultation with a licensed family law attorney is only a phone call away and meetings are available six days a week.
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Other Articles you may be interested on regarding
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Law Office of Bryan Fagan, PLLC | Kingwood Divorce Lawyer
The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with ar Kingwood, TX Divorce Lawyer right away to protect your rights.
A divorce lawyer in Kingwood TX is skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles Divorce cases in Spring, Texas, Cypress, Spring, Klein, Humble, Kingwood, Tomball, The Woodlands, Houston, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.