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What will impact a judge’s decision in regard to where your child will primarily reside?

If the family court order that you and your family have been operating under for years no longer suits your needs, what are your options? What if your 14-year-old son is expressing an interest to come live with you on a full-time basis? Will you have an opportunity to go to court and change the order if that's truly what he wants? Or will you have to go it alone by asking your child's mother to negotiate with you outside of court?

Fortunately for you, either option is available in Texas. Our family courts invite parents like yourself to file modification lawsuits with the understanding that doing so is not a guarantee of achieving a particular result. In order to avoid going all the way to court and not achieving your top goal in a modification case, your judge will likely require that you and your opposing party mediate your case at least once in hopes of reaching an agreement outside of court. That will free up the courtroom for other parties and will hopefully allow you and your opposing party to work together to achieve an end result that suits both of you well.

Older children and changing primary conservatorship

If the issue of your case isprimary conservatorship of a child 12 years or older, then it is probable that you will be interested in having your child speak to the judge about where he or she wants to live full time. I say this not because I know your family, but because I know from having worked with many other families in your position. Most of the time, these folks have either done the research themselves or talked to other people who have told them that teenaged children have a right to speak to the judge about their custody preference.

Let’s talk about that before we go any further in today’s blog post. Yes, the law in Texas is that any child twelve years or old will be able to speak to the judge about their preferences on custody. Specifically, it is likely that the judge will ask the child where he or she wants to live primarily and why he or he holds that opinion. It may be everything that it is cracked up to be, however.

First of all, just because a judge has to speak to your child doesn’t mean that the judge is going to solely rely upon that child’s opinion when it comes to a final determination as to custody. Judges know just as well as you and me that kids change their opinions frequently. What your child wants today may not be what he or she wants in two years, two months or even two weeks. Being told by your child that he wants to live with you and not his mom Is not necessarily a good enough reason to hire a lawyer and file a modification case.

Consider that the judge in your case does not have to agree with your child. Also, consider that the judge does not even have to ask your child the questions that you want him or her to ask. Your judge is not a child therapist or someone who is trained in questioning children. He or she has probably been to a judge's conference where they picked up some skill in doing so, but there is nothing that forces the judge to ask your child the specific questions that you want. Do not base your entire case on your child speaking to the judge, in other words.

The court will focus on the totality of the evidence put before it, not just the opinion of your child. Once the judge has all of the information available to him or her, they will make a decision. The weight that the judge places on particular pieces of evidence will depend on the individual judge. What your judge finds to be important evidence may not matter too much to another judge. It is very difficult to guess the reaction of a particular judge to a particular piece of evidence, as well.

What to do in the event that you and your child’s other parent cannot agree on anything?

Here is where the rubber meets the road. For most families, there can be relatively easy to reach middle ground on issues that range from custody to visitation to child support. Although you may not be completely happy with the agreement, you can still reason with the other parent and reach a consensus on whatever issue you are facing. The bottom line is that you realize that your decisions should be based on what is in the best interests for your child. Everything else in your case is secondary.

What happens, though, if you find yourself in a situation where you and your child’s other parent cannot agree on anything in relation to your child. You’ve been to court previously and have a court order in place and both of you find yourself at differing views on a number of subjects contained within that order. On top of that, you cannot work the problems out with negotiation or walking a mile in other person’s shoes. This is potentially dangerous ground you are walking on, needless to say.

It is situations like this that call for a concerted effort on both of your parts to establish some sort of middle ground. Co-parenting is a term that family law attorneys, judges, therapists and parents use ad nauseam these days. It basically means that you and your ex-spouse will share parenting responsibilities after the initial family case has concluded. It can be extremely difficult to do at times, putting aside your personal feelings for one another, but it is necessary for the betterment of your children.

Sometimes all it takes is moving back a step and considering what role did you play in creating whatever circumstance has led you to be back in family court. It could be that you and your ex-spouse do not do well interacting with each other one on one. All it can take is a glance, a movement of the hand, an eye roll or anything in between to trigger a bad emotion. Why not look to co-parenting websites, e-mail, text or a less personal means of communication in order to communicate with him or her.

One piece of advice that I like to give people is to imagine that everything that you say to your ex-spouse will be kept by him or her in a file to be potentially used against you in a future court case. This may be a cynical way of working with another person, but if it keeps you from lashing out in anger or using inappropriate language I would argue that it is worth it. If you're not comfortable having a judge see what you wrote in an email to your ex-spouse, don't click send on that message.

The other thing that I would like to share with you is to be as clear and concise in what you have to say as possible. Do not look at every email or text as a chance to re-litigate your divorce or any other petty problem that you have with this person. While you may have legitimate concerns with him or her, that doesn’t mean that you need to go for blood in every text message. Trust me- I have seen my fair share of multiple page text message conversations between clients and their ex-spouses. When I ask what the client sought to achieve by engaging in that sort of talk, their answer is usually, “I’m not sure.” Don’t put yourself in that position. Be clear in what you are communicating, do it in a kind way, and then end the conversation. Period.

Make sure that you are clear on what your ex-spouse has told you

One thing that I recommend to clients is to be willing to always re-phrase what your ex-spouse has told you and to tell it back to him or her. That way you can show that you are actively listening to him or her and are attempting to make sure you are 100% clear on what he or she is telling or asking. Do not leave a conversation guessing at what he or she meant by a certain thing that they said. Get it straight from them and then you can move on to whether or not there is an issue at hand.

Don’t instigate

The reality is that you know what drives your ex-spouse nuts. If you didn't know when you were married to him or her, you probably know now. With that said, you should not look to antagonize him or her about issues that arise in your co-parenting relationship. It may make you feel good at that moment, but your ex-spouse will remember that interaction. You could find yourself on the receiving end of behavior like this in the future on an issue that you really care about.

Rather than instigate, try to look out for things that your ex-spouse is doing that is beneficial for your child. If he or she allowed you to swap weekends so that you could go out of town then you should thank him or her early and often. Acknowledging their willingness to work with you can go a long way in your relationship with him or her. Making note of their good deeds and promising to return the favor can be a great thing for you to do. \\

Is it worth it?

Whatever issue it is that you cannot seem to agree on with your ex-spouse, you need to be the one to determine whether or not it is worth it to fight over it- whatever “it” is. It doesn’t matter ultimately if it is worth it to your ex-spouse. It takes two to tango when it comes to problems like this. If you do not engage him or her in an escalation of the disagreement there is only so far the problem can go. Remember to grow, a fire needs oxygen. If you take away your oxygen then there is a limit to how big that fire can get. Don’t get burned- save your oxygen for something more important to you.

Are you fighting for you, or for your child?

This is a key thing to understand. Are you fighting to make yourself happy or to make your child happy? Is your child’s well-being hanging in the balance, or are you just looking to pick a fight with someone who is more than willing to do some back and forth with you? Remember that a judge has to make any family court decision with the best interests of your child in mind. If you had to do the same how would you change the way that you behave?

Ultimately, if you align yourself with your child’s interests first then you cannot lose. Sometimes what you want differs from what your child needs. It happens- hopefully not that often- but it happens, nonetheless. Ask yourself if you are doing something that primarily benefits your child before engaging in a disagreement with your ex-spouse.

Questions about resolving conflicts amicably? Contact the Law Office of Bryan Fagan

If you have any questions about the material that we shared with you today, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys can schedule you for a free of charge consultation here in our office, six days a week. These consultations are a great opportunity to ask questions and receive direct feedback about your particular circumstances.

Our attorneys are given an opportunity every day to represent clients in the family courtrooms of southeast Texas. That is a responsibility that we take seriously. Our mission for each of our clients is to achieve the best result possible for each of them, by placing their interests and their families first.

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