Many parents going through a family law case will find the biggest issue comes from determining what parent the children will live with. There may be disagreements over which parent is fit enough to care for the children. Often people are under the impression that their child has a preference on who will acquire custody over them. Meaning they believe their child will get to decide which parent they will live with. The truth is in a minority of states, children will be able to decide which parent they want to live in, but that is not the case in Texas. In Texas, a child’s preference has little weight on who will retain custody of them.
If you have a child who is at least 12 years of age, they may be able to voice a preference on who they will live with. At the age of 12 child can display more of their maturity and are able to comprehend how a divorce will affect their future. However, if your child under the age of 12 that decision will be determined by the Judge on their behalf. If your child is 12 years or older, those preferences are only taken into consideration by the Judge who will ultimately have the final decision. The Texas Family Code, in section 153.009, explains how a Judge retains the discretion to determine what is in the best interest of the child. This section also describes the interviewing mechanisms the court can use in interviewing the child. Here in this interview is where the child can display their wishes regarding who they prefer to live with, and any other requests they may have for the court. Children 12 and over were granted this right as a matter of public policy by the Texas Legislature that states children should have a voice in the proceeding since their future is being determined.
This type of interview mentioned above in section 153.009 applies in only two instances: (1) in a bench trial (a bench trial is given before the Judge with no jury) if the child is 12 years or older, and (2) on a motion by one of the parties, a motion by the amicus attorney, or on the courts own motion (sua sponte). You will need to request that the court conduct an interview for your child to display their preferences to the court if the amicus or court does not move for it on their own.
An amicus attorney is a court appointed attorney that represents the child in the proceedings and are mostly provided in cases that are highly contested. The amicus is there to determine what is in the best interests of the children not to voice the child’s custody wishes. The way an amicus gathers that information is done in various forms that include: talking to the children and parents, making home visits, interviewing third parties like friends or doctors, attending the court hearings and mediations, and they can even partake in the discovery process to discover information they seek. Despite these recommendations and the wishes of the children the Judge will retain the ultimate discretion over the child’s preference regardless.
The weight of the child’s stated preferences differs on a case by case or judge by judge basis, and there many other intervening factors weighing in on a Judge’s discretion. These other intervening factors help a Judge determine who will be the “Primary Conservator”. A primary conservator is the parent who makes the decision on where the children will live, and this parent will also receive child support. These factors that will have weight on the Judge’s discretion include: the child’s age and preferences, the parent-child relationship, the relationship between the parents, the child’s needs (developmental, emotional, and health) each parent’s financial situation, the living situations of each parent, the health of the parents, and any history of abuse or neglect.
Before a final decision is made it is important to know that many Texas courts will require both parents complete a co-parenting course. The court may even appoint a parenting facilitator or parenting coordinator to help establish a healthy co-parenting relationship. The roles of this help are similar in that they help parents solve issues in the parent relationship. However, they differ in that a facilitator’s work is not confidential and they can testify on behalf of their work, they often take on a more supervisory role making sure the parents stick to the parenting plan. On the other hand, a coordinator maintains a confidential relationship with the parent and cannot testify about their work obtained through the parent coordination and must fulfill their roles through procedures established by the Court.
If you are unhappy with the court’s determination about who will be the “primary parent”, it is good to know that the court’s decision is not always permanent. Either parent unhappy with the outcome can petition with the courts for a modification on the order that determined the conservatorship of the child. However, there will need to be a proof of a substantial change in circumstances. Some examples of substantial changes in circumstances could involve any of the aforementioned factors.
Another thing to keep in mind is that although most custody battles are resolved through the court systems there are alternate methods to resolving those issues. In fact, most people will come to an agreement without court intervention through what is called an alternative dispute resolution. Alternative dispute resolutions can be in the form of a mediation or arbitration. In a mediation, an impartial mediator will negotiate with the parties until a common ground is reached versus an arbitration where the arbitrator will hear the evidence and decide without negotiation.Overall, a Judge will have the final say so in which parent will be the primary parent, but if you are child 12 years and over in the state of Texas you are able to voice your opinion on how you wish to live with which can have some weight on the Judge’s decision. Remember everything should be done with the children’s best interest in mind regarding where a child will get to live, because these decisions can affect the future of the children.