In Texas, the way that child custody is handled is sometimes misunderstood when it comes to the child’s preference of where to live. Prior to 2010, a child at least 12 years of age had the option to submit a preference to the court in writing about which parent’s home they preferred as their primary residence. This has since changed, and the new statute follows a different process than before.
The new statute established in 2010 allows for a child age 12 or older to speak with the judge in person rather than submitting their preference in writing. Prior to this conversation, one or both of the parents must submit a request to the judge regarding the child’s desire to meet for this discussion. Once the request has been submitted for a child who is at least 12 years old, the interview is mandatory. The same request may also be submitted by a parent for a child under the age of 12, although this interview is not mandatory. Rather, the decision regarding whether the interview will be allowed is at the judge’s discretion.
During such an interview, the judge will ask questions regarding the child’s preference of where to live. In addition to discussing residency and primary conservatorship, the interview will likely also discuss other related topics such as visitation. This interview will be conducted in private in the judge’s chambers between just the judge and the child. Neither the parents nor their attorneys will be allowed to attend the interview. If the child is at least 12 years old and if one of the parents requests a transcript, then the interview will be documented in the record. For this purpose, a court reporter may attend the interview meeting to make a transcript of the conversation.
While the judge will take the interview discussions into account, the court is not obligated to grant the child’s wishes on these matters. Decisions regarding residency, primary conservatorship, and visitation are ultimately at the court’s discretion. The judge will certainly consider the child’s preferences. However, those preferences are just one part of what the court will consider in this matter.
The court will examine all the evidence in the case, which may include conversations with other related individuals, such as friends, teachers, neighbors, guidance counselors, and therapists. The evidence may also include the circumstances surrounding the divorce, details of each parent’s living situation, and consideration of whether the child’s wishes are in the child’s best interest.
The court will make its decision based on all these factors. The court’s charge is to act in the best interest of the child, whether or not this aligns with the child’s wishes and preferences for residency, primary conservatorship, and visitation.
Divorce proceedings and the associated stress and tension often put a significant strain on a child. This may be amplified in situations where one or both parents inappropriately attempt to sway the child’s decision. The judge will likely be able to recognize when this is taking place. Parental attempts to influence the child’s wishes may look as if the child has been coached by a parent prior to the interview.
Under this new statute, the judge is able to discern more readily whether any bribing or coercion seems to be involved. This is due to the nature of the process in which the judge is able to ask questions and listen to the child’s responses. This provides more context and deeper understanding compared to the prior, outdated process, which required only that the child submit their request in writing and did not allow for further examination.
If you or someone you know is going through a divorce, you need an experienced attorney to ensure the priorities of your family come first. This is an emotional and sensitive time, especially when children are involved. Our goal is to help you move past this challenging experience so you and your children can get back to your lives and establish a new normal that works for you.
Our attorneys are dedicated to helping our clients navigate their divorce with a focus on their family’s priorities. Because we’re a small firm, we’re able to give you personalized attention, and we’ll be there for you. You can ask us any question, and we’ll find the answer. We’ve been helping people get through difficult divorces for more than three decades. We’re ready to help you, too.
Call us today at (281) 391-9237 to speak with an Adams Law Firm attorney about your options.