If you are going through a child custody or divorce case the thought has probably crossed your mind as to whether or not you would want your child to talk to the judge about which parent he or she wants to live with primarily.
I’ve seen this a lot with parents who will come into the Law Office of Bryan Fagan, PLLC for a consultation and say that they know that [insert name of child here] would want to live with them and that they want “full custody” as a result. While you may have every reason in the world to believe that your child would want to live with you more than their other parent it is not always that simple to get that opinion to the judge.
The attorneys with the Law Office of Bryan Fagan, PLLC would like to share our perspective with you on the subject of children speaking to the court about their preference as to where he or she would like to live. What you may end up finding out after reading this post is that the subject that seemed clear in your mind probably won’t end up being so in practice.
So you want your child to talk to the judge- is this possible?
Texas courts are willing and able to listen to your child’s opinion on where he or she would like to live when making a determination on a child custody or divorce case. Indeed, if your child is over the age of twelve all it takes is for you or your family law attorney to file a motion with the judge asking for the ability to do so. The law I am referencing does not say that a judge may listen to the child, but rather it says a judge shall interview the child in closed quarters regarding that subject.
Make no mistake though- a judge is not a therapist or counselor or CPS worker. A judge has a job to do and it is not to listen to your child’s opinion on this subject. After all, your child is just that- a child. Their opinions change often and are dictated often times by what appeals to them most at that moment. A judge on the other hand makes decisions in regard to children based on what is in their best interest. So while a judge may listen to the child, he or she may not take that conversation and apply it to their ultimate decision on the subject.
How does the court begin to make a decision on custody?
It is the public policy goal of the state of Texas to encourage both parents to have long lasting and continuous contact with their children. Based on this standard a court begins with the opinion that the non primary parent (the parent with whom the child doesn’t live with primarily) should have at least a standard possession order awarded to them. This is the fairly “typical” breakdown for parents that you have probably heard of before: first, third and fifth weekends of each month, a Thursday evening each week and then extended summer visits and alternating holidays.
Custody schedules can vary of course, and often do. This is especially the case if you and your spouse or other parent come to an agreement outside of court. Custody agreements can be modified as well as the child gets older. This is where your child’s ability to speak to the judge comes into play. The older your child is when you request that they speak to the judge the more likely it is that the judge will take their opinion into consideration.
In addition to time with the child, the rights and duties that each parent share will be split evenly. This means that both parents will have to agree on decisions on important topics like what school the child will attend, which doctor he or she will see and whether or not the child should attend counseling or therapy of any sort.
Best Interest of the Child
As we discussed earlier, the judge in your case will consider the best interests of your child when making any decision regarding custody. This may sound like a vague, subjective standard and you would be right in making that assessment. The state wants judges to have the ability to apply the specific facts and circumstances of your case against what the law says and to make a decision based on that information.
The judge will interview the child if the request is made and the child is older than 12. A child younger than 12 may be interviewed but at that point it is up to the judge as to grant the request. There is no set amount of questions that a judge must ask in an interview, but typically the judge will ultimately ask whom he or she wants to live with and why. But again, the response is weighed along with many other factors when the judge ultimately makes their decision as to what is in the best interests of the child.
In almost no circumstance can I imagine a child being asked to testify in court as to their preference. A child is already being put in the middle of their parents’ legal battle by speaking to the judge in private. Having to go through the stressful experience of having to talk to the judge on the witness stand in front of both parents would only make that situation more excruciating for the child.
Questions on child custody? Please contact the Law Office of Bryan Fagan, PLLC
If you have any other questions regarding the subjects of child custody and the ability of your child to speak to the judge then I would encourage you to contact the attorneys with the Law Office of Bryan Fagan, PLLC today. Our experienced team of attorneys can answer your questions in a free of charge consultation.
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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 a 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.