Book an appointment using SetMore

Should the Child Decide on Custody?

At what age in Texas can a child help determine where he or she will live primarily?

In the state of Texas, when your child reaches the age of 12, he or she is legally able to help determine where they will live on a primary basis. However, a family court judge does not need to necessarily follow your child's wishes and not consider any other information available to him or her. It would be a rare occasion where only the opinion of your child was factored into the decision of a judge. Rather, there are many circumstances and factors in play when it comes to determining an issue of primary conservatorship in a Texas child custody or divorce case. Not only is the opinion of your child important but also what is in the child's best interests.

It would be a mistake for you to tell your child, or anyone else for that matter, that he or she is going to be able to choose where they live primarily after the family law case is over with. As we just finished discussing, your child will play a role in determining where he or she lives, potentially, but a family court judge will likely have much more evidence to consider than simply the wishes of your child when it comes to figuring out where he or she will live primarily. Children must abide by make custody orders until they reach the age of adulthood. Until then, the terms of the custody order will impact where your child lives and how often you and your co-parent can possess your child.

It used to be that if your child were over the age of 12 then he or she could sign some paperwork telling the court which parent he or she would like to live with primarily. A child's primary residence is where he or she lives during the school week. The other parent would have visitation, most likely on the first, 3rd, and 5th weekends of each month. Primary conservatorship is important because it carries with it more time and likely more rights to be able to make decisions for your child.

Now in Texas, the law has changed that your child may speak to the judge in their office privately about their wishes regarding primary conservatorship if he or she is over the age of 12. Testifying in court about custody preferences does not happen very often. One of the reasons why this is very rare is that most parents do not want to put their child in the middle of a contested custody hearing or trial and therefore have their child feel like they are having to choose between you or their co-parent.

How it works is that if you or your co-parent file a motion with the judge to have your child be able to express to the judge their wishes as far as primary conservatorship is concerned the judge must interview your child in their office if he or she is over the age of 12. You may file the same motion for you were a child under the age of 12 but at that point, it is up to the judge whether he or she will allow your child to be interviewed. The facts and circumstances of your case as well as whether the judge thinks a child of their age will be able to express themselves adequately will also factor into the primary custody decision and whether or not an interview will be allowed.

How will the interview work with your child?

If your child is to be interviewed by the judge, then it must be in a non-jury trial setting. Fortunately, most child custody cases are bench trials before the judge and do not involve juries. As we just finished talking about the judge will determine whether to allow the interview to be conducted if your child is under the age of 12. If your child is 12 or older then the judge must allow for the interview to occur, but it is up to the judge's discretion whether to allow for your attorney in that or your Co-parent to be present during the interview itself. However, if you or your co-parent request that a court reporter is present then the judge must allow for that to occur. Under no circumstances are you or your co-parent allowed in the judge's office during this interview.

How closely does the judge have to follow the desires of your child as far as primary custody?

The judge is under no obligation to follow your child's specific wishes or wants as far as primary custody or visitation. This is true for many reasons, not the least of which involves how the opinions and desires of teenage children tend to change quite frequently. One day your child could express an intense desire to live with you primarily. The next, the opposite could be true when your child wants to live with your co-parent. Very little may have changed overnight but your child is learning and developing and changes in their opinion like this are normal. However, that does not mean that a family court judge must necessarily take everything your child says at face value. Judges know enough to be able to determine that the opinion of teenagers tend to change rapidly for several reasons or no reason at all.

Oftentimes, children make decisions based on factors as simple as who allows the child to get away with more, who is less strict in the household, which parent lives closer to their friends, or which parent is “nicer.” I have seen children express desires to live with one parent over the other because that parent is a better cook. This is not to belittle or second guess the opinions of your children as they go through a very difficult stage in their life. However, it does speak to how the interests of your child at their age may be quite different than what is in their best interests. This is the standard that a family court judge and you as a parent must follow when making decisions for your child. Children are notoriously poor at making decisions that are in their long-term best interests. This is one of the most important reasons why a family court judge will not solely consider the opinion of your child when it comes to determining their primary conservator and place of residence.

Judges are also aware of the possibility that your child may be influenced by you or your Co-parent when it comes to making statements regarding their desire to live with one parent or the other. For example, you may be trying to influence your child by making him or her feel guilty about selecting your co-parent as the primary conservator. Many children can be influenced by feelings of guilt when it comes to giving their opinion on subjects like primary conservatorship. On the other hand, your co-parent may be attempting to bribe your child with gifts, leniency with their schoolwork and chores, or a later bedtime or curfew. These are other factors that a family court judge must be aware of and watch for when questioning your child about their preference for a living situation.

What are the most important factors that a family court judge will look at in considering the opinions of your child?

As with any person in the judge's position, he or she will likely ask why your child is stating a preference for one parent over the other. If your child walks into their office and says that he or she wants to live with you primarily then a simple follow-up question would likely be why that's the case. The judge will listen to your child's answer for several reasons not the least of which is to determine the child's thought process and maturity level. The more well-developed and thought out your child's answers and explanations are the more likely the judge in your child's case will be to consider the opinion as more valid and trustworthy. Age has a lot to do with this and is a major reason why children under the age of 12 are not always given the ability to speak to a judge about this subject. 

If your child expresses their desire to live with a parent who allows for a later curfew, fewer rules, and more junk food then that probably will not sit well with the judge and he or she may end the interview at that point. It would be very unlikely for the child’s position to carry much weight with the judge. 

What specific elements of a parenting plan can your child potentially choose?

Other than deciding which parent will become their primary conservator, the law in Texas does not provide much in the way of autonomy to your child when it comes to other decisions that can be made in your case. Imagine putting yourself in a position where your child can determine how and when you see him or her without being able to submit evidence or have a court consider your arguments. The child custody laws of Texas are designed to prevent a situation like this from occurring. 

On the other hand, there is a possibility that a child custody evaluator, amicus attorney, or attorney ad litem is appointed to your case to provide the judge with another set of eyes and ears on the case to help him or her decide. All these people could be appointed (though likely not all in one case) to give the judge a different perspective on the case. Remember that no matter how much evidence you submit in a hearing or trial the judge will only know what is happening in your case based on what is going on inside the courthouse. Needless to say, what goes on outside of court is more indicative of who you are as a parent. 

How can you convince a judge to let your younger child speak on custody issues?

If you have a child who is under the age of 12 then you may be looking for any tips that you can get your hands on as far as helping to convince a judge to consider strongly the wishes of a younger child. Remember that the judge does not even have to speak to a child under the age of 12 even if you were to file a motion requesting that this occurs. With that said, how can you get to a point where the judge more strongly considers their opinion when he or she is going to decide on naming a primary conservator of the children? 

We have already talked about one of the options that you can consider- namely, asking the court to appoint an amicus attorney. An amicus attorney would represent your interests of you by communicating the child's preferences to the judge as well as other information. This is sort of an inadvertent way to have your child's preferences be made known to the judge without ever having your child step foot in the judge's office. This may even be preferable for you if you want to do whatever is possible to your child as uninvolved with the divorce or child custody as possible.

Ideally, the amicus attorney will be told by your child where he or she wants to live primarily. That information can be relayed to the judge either in writing or orally in a hearing. Taking your child as a counselor may be a good way to help him or her sort out their emotions surrounding the family law case. It is also a way for you to get your child's position on the record without having him testify. This could be done by calling the counselor as a witness either in a temporary order hearing or trial. 

The best interest standard in a child custody case

The best interest standard is one that is applied in child custody cases across the country. However, be aware that the factors that a judge can consider do not appear in a specific order. Rather, the judge is empowered to make custody decisions based on the best interests of your child. He or she will consider these factors in some order when it comes to your child custody case. 

Your relationship with your child is crucial when you are asking to become that child’s primary conservator. If you have been a well-meaning yet distant parent then you probably do not stand much of a chance to become the child’s primary conservator. This isn’t due to your being a bad parent or an absentee parent. Rather, it is due to your never having played that role in the life of your child before. Family Court judges are very conservative when it comes to handing down conservatorship orders. Do not expect miracles if you have never been the primary caretaker of your children.  

Next, it can feel overly personal at times but your mental health and that of your co-parent are extremely relevant in the context of a child custody or divorce case. If you are battling with suicidal thoughts, extreme behavioral issues are important for the case to consider. If you do have any mental health troubles, then you should discuss them with your attorney at the beginning of a case. Do not hide these diagnoses or problems from your attorney. The last thing you will want to do is to completely not tell your attorney about the problems with mental health that you may be experiencing. 

How old your child is plays a huge role in determining primary custody- especially if your child has spoken to the judge in their office. The older your child is the more mature he or she likely is. This means that a judge is more likely to consider their opinion. On the other hand, your child may be too young to testify to the judge and may be at an age where their main concern is who they are going to dress up as for Halloween.

It should be obvious to you that there are a lot of moving pieces in play when you are a part of a divorce or child custody case. For that reason, you should reach out to an experienced family law attorney to help guide you in a case. A consultation with an attorney who can answer questions and who can provide you with information is a great start. Find yourself an attorney with the heart of a teacher and you can succeed often. 

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 what may happen if a child custody or divorce case is filed. 

Sign Up Here to Download Our eBook!

Fill out the form below 
  • Please enter your first name.
  • Please enter your last name.
  • Please enter your phone number.
    This isn't a valid phone number.
  • Please enter your email address.
    This isn't a valid email address.
  • Please make a selection.
  • Please enter a message.