The longer that I am fortunate enough to be able to work in the field of Texas family law and more high and able to hear about people's different theories and beliefs on valve custody and divorce cases. Many times, these theories and beliefs are based on information that is either completely incorrect or largely incorrect. A lot of times he's mistaken beliefs or theories are the product of listening to people who have good intentions but are not quite up to date on changes in the law or I have mistaken understandings about things they were told previously. Does anyone reading this blog post remember the game telephone from our childhood? What started as one kind of story become something completely different over time.
I think that is how a lot of misinformation about family law is circulated. People just like you attempt to diligently obtain information only to hear things about the world of family law that sound accurate but may end up not being that way at all. Sometimes this information can do a great deal of harm before the untruth or misinformation can be corrected. A lot of the motivation behind the Law Office of Bryan Fagan providing blog posts on our website is to combat disinformation and misinformation. They want you to have accurate information about family law that you can use to your advantage in whatever circumstances you are facing currently regarding family law-related issues.
The ability of a child to pick whom he or she lives with new paragraph Probably one of the most widely held beliefs when it comes to family law and child custody issues specifically is regarding children being able to pick which parent they are going to reside with primarily. I cannot tell you how many times I have sat in a free-of-charge consultation with potential clients from our office and I've heard parents confidently tell me that their divorce or child custody case should go rather smoothly because they know their child is going to tell a judge that he or she wants to live with then I full-time basis. The assumption is that a family court judge will simply do whatever a child says, no matter what, when it comes to child custody.
At least in part, this is something that is based on fact. Your child may have an opportunity to approach a judge to discuss the subject of visitation and child custody. This will be done to express their views and opinions on the subject and to help a judge understand what their wishes are regarding custody. However, the reality is that your child may have the last seven opportunities that you would have believed previously to do this. He or she may have no opportunity depending upon the circumstances of your case in the age of your child.
In today's blog post from the Law Office of Bryan Fagan, we are going to discuss the subject of child custody, children's wishes, and the relationship between the two. Will your child tell a judge where he or she wants to live full-time? To what extent do children have a say in their final custody circumstances? These are the type of questions that we are going to be asking ourselves today. Stay with us until the end and you may be able to gain an important understanding of how a family like yours may be impacted by the laws in Texas regarding custody as well as the ability of your children to be able to express themselves to a judge as far as custody, possession, and visitation are concerned.
Considerations related to becoming the primary conservator of a child
there are a lot of important considerations for you to think over if you are interested in becoming the primary conservator of your children. The primary conservator of a child is the parent who not only has the right to determine the primary residence of your children but also the right to receive child support and make decisions regarding the well-being of your children. For many parents, this is the most important right about a child custody case that your family will come across.
From my experience, there is something about being able to say that you are the primary conservator of your children a huge difference to some parents. Not only does that parent get to say that the children spend more time with him or her but there is the connotation that you have “won” the divorce or child custody case if you can win this right. For better or worse I think this is a lot of the reason why many parents push to become a primary conservators. However, no matter what your motivation is to become the primary conservator of your children you need to be aware of what circumstances in your life may increase or decrease your ability to win primary conservatorship rights.
To begin with, family court judges are notoriously conservative when it comes to custody. By this, I do not mean politically conservative. Rather, I simply mean that judges will not want to rock the applecart when it comes to naming the primary conservator of children. Rather, a family court judge would much rather stick with what has worked to that point in terms of assigning primary conservatorships rights. If you have been the primary caretaker of your children to that point in their lives then it is very likely that you will have a leg up regarding custody and conservatorships issues in a family law case. By the same token, if you have been working outside the house mostly you have not been able to fulfill the obligations and role of a primary conservator to that point then it is more difficult for you to be named as primary conservator.
A primary conservator must be available to care for children in emergencies. If you have a job that requires you to work outside the home or on call then it is difficult for you to make an argument that you would be able to drop everything at a moment’s notice and run to the school or doctor's office in the event something happened to your child. This does not make you a bet or negligent parent. All it means is that you have standard work responsibilities that account for your time between the hours of nine and five. For this reason, you need to consider your work schedule and responsibilities in terms of your request that you be named the primary conservator of your children.
What the family code says about your child voicing an opinion about custody
Something that we have not yet discussed regarding the subject of your child and custody issues is how difficult it can be for your child to have to be caught in the middle of two parents making decisions about their custody and visitation arrangements. To begin with, your child will ideally love you and your spouse equally. This means that he or she is very likely going to feel conflicted telling either you or your Co-parent what their preference is regarding these two subjects. It would not be abnormal for your child to tell you one thing and your Co-parent another thing regarding what their wishes are. You should not view this as trying to play both sides of an argument but rather as your child being uncomfortable with having to disclose preferences between both of their parents. I think if we put ourselves in a child's shoes like this you would see that it can be very difficult to decide for your child one way or another.
Once your child reaches a certain age many parents will assume that they will be able to speak directly to a judge about their preferences on custody and visitation period getting back to what we discussed earlier in today's blog post, this is frequently a subject that comes up in consultations and just in general conversation. It is a widely held belief that your child will be able to meet with a judge and speak to him or her regarding the facts and circumstances of your case and their preferences on visitation without any question. After this meeting occurs, the thought is that the judge will automatically follow the wishes of your child. you and your Co-parent will then have to follow the orders of the judge which are based on the desires of your child.
What we need to ask ourselves in this situation is to what extent your child will be able to make decisions on subjects like these. When you stop and think about it it can be a tricky position for you all to be in to assume that your child will be able to make decisions regarding their custody and possession circumstances. On top of that, you were a child who would then be tasked with being able to trump the desires of at least one parent and possibly even judge him or herself. At this level, it can be difficult to imagine anything being more ridiculous. Would you ever allow your child to be the only decision maker on anything of importance? I do not think so. Rather, if anything you may allow your child to have a voice in this topic of discussion, but it is very unlikely that you would allow your child to have the sole decision-making capabilities on anything that is that important.
We can approach the topic about your child giving preference to whichever parent buys him or her more toys or activities. For younger children, it literally could be toys that we were talking about. For older children, on the other hand, it could be trips, a vehicle, a later curfew, and anything in between. Your child may choose to give their preference in custody and possession to whichever parent is more “fun.” has anyone knows, children tend to change opinions with great frequency and seemingly for no reason at all. As a result, this is another factor that may give you a reason to pause as far as thinking about why your child may not necessarily be the best at determining where he or she should live on a primary basis.
The reality is that in Texas your child may be able to voice their opinion to a family court judge as far as custody, visitation, and possessions are concerned. However, the Texas family code does not allow your child to be the sole decision-making authority at least in an instance where the case goes before the Texas family court judge. In that instance, we can look to the Texas family code to see what is allowed as far as your child being able to tell a judge their preference on these important subjects. In the paragraph under section 153 of the Texas family code, a child who is 12 years old or older can speak with a family court judge in your case in person about their preferences on visitation and possession. This can be done after the request of you, your Co-parent, or by the motion of the court itself.
Frequently these types of situations arise where there is a question about which parent should be named as the primary conservator of the child. In a situation like this, your child could be interviewed in private by the judge in the judge’s office. Keep in mind, however, that a family court judge is not a child therapist or counselor. Therefore, the judge will not delve into the minutiae of the families’ issues or other problems. Rather, the judge in your case would likely ask straightforward questions about just a few subjects.
To be direct, the family court judge would ask questions about your child's desires regarding where he or she lives on a primary basis. This is a straightforward question and one that would allow the judge to get an idea of where your child stands on this important subject. Your child might express some legitimate concerns about living with one parent and may express legitimate positive attributes about living with you. Oftentimes children share things in these meetings that neither parent has expressed in their pleadings.
Next, the judge would likely ask your child about preferred visitation structures with the parent who would have visitation rights. For example, if your child were to tell the judge that he or she prefers to live with you on a full-time basis then the next logical question would be what sort of visitation time with your Co-parent would be preferable under the circumstances of your case. Your child can share any concerns that he or she has with visiting your Co-parent as well as a proposed schedule based on the needs of your family and your child as an individual.
Finally, the judge will likely ask your child any questions regarding other issues that are ongoing in your case. There may be issues regarding family violence, discipline, behavior, and a whole host of other subjects that might be relevant to the case. Sometimes your child can act as a better barometer of these issues than either you or your Co-parent. In this way, the judge can act as a bit of a detective when it comes to finding out information about other issues related to your case.
if your child is over the age of 12 and you as a parent request that the judge interview your child then the judge must interview your child. However, if your child is under the age of 12 then an interview with the child would be left up to the discretion of the judge. This means that the judge could allow the interview to happen but may decide that it is not necessary or is not in the best interest of the child. Or the judge may decide that he or she can decide without the input of your child.
Another important issue to discuss in this circumstance is that you and your Co-parent are not going to be allowed in the judge’s office during the interview. The attorneys for you and your spouse cannot be present, either. The one record that can be kept of the interview is about the court reporter being allowed into the meeting. If either you or your Co-parent, ask the judge to have a court reporter present then he or she can keep a record of what is said. The interview will be transcribed and could be potentially part of your case record.
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. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family circumstances may be impacted by the filing of a divorce or child custody case.
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