When Can My Child Decide Which Parent to Live With?

Mother and child lay in grass smiling at each other

The short answer is that a child cannot decide where the child lives until the child is 18 years old. However, in Texas and upon request of the parents, the judge can consider the child’s position when the judge decides on a custody schedule.

Courts Can Consider a Kid’s Wishes in Custody Cases

Divorce is hard on the whole family – children included. As kids battle with fears of moving away, anxiety about how their home life will change, and the overall pain of watching their parents separate, they’ll likely develop preferences for which parent they’d like to live with. Sometimes, the courts will take these requests into consideration when ruling on custody.

Texas Laws Regarding Listening to a Child’s Input

Texas Family Code 153.009 protects children’s voices. A parent may request the judge to interview the parent’s child in the judge’s office without the prying eyes and ears of the parents or a court audience. The judge will not interview the child without the parent filing a formal motion to the court requesting the judge to interview the child in the judge’s chambers.

There are different rules for children 11 and younger and children 12 and older. The judge may use his or her discretion as to whether or not to interview a child under 12 years old. If a minor child is 12 years old or older, after a request from the parent, the Texas code requires the judge to meet with the child to hear the child’s preferences and perspective.

When a Judge Declines to Interview

If the judge refuses to interview the child under 12 years old, a parent may pursue some more expensive options to have the child’s preferences heard in court. They could request that the child have a lawyer appointed for them, called an attorney ad litem. Alternatively, a parent could hire a psychologist to evaluate the child custody matter, or bring the child to a counselor to whom they can share their wishes. In either case, the professional will usually testify or report to the judge about the child’s wishes and their own professional opinion of what would best serve the child. One risk of these options, is that the child speaking out of court to another third party would be considered hearsay, and the attorney trying to get that evidence before the court may run into hearsay objections from the opposing side.

The Weight of a Child’s Preference

The judge, when hearing the child’s preference, will consider not just their answer, but their reasoning for it. A decision based on a belief that they will be assigned fewer chores and subject to fewer rules will not carry the same weight as one in which a child wishes to stay close to their friends and remain in the same school district. The judge looks for evidence that the child has been abused, neglected, or been coached by a parent in an effort to alienate the child from the other parent.

The decision is ultimately left to the judge, as it’s believed that they have the ability to recognize and protect the child’s best interests, even if it strays from the child’s preferences.

When Children Can Make the Decision Themselves

Children are only granted the right to decide which parent they live with after they become an adult at 18. Until then, kids are expected to abide by all court-ordered custody and visitation schedules.

If your marriage is approaching an end, contact Camille Borg Law PLLC. We can help make your child’s opinion heard and fight for a custody decision that protects their best interests. Call us at (469) 646-7763 to get started.

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