The Role of the Child in Custody/Possession Decisions

Most people are confused and often incorrect about when a child can choose whether to live with his mother or his father, and frequently ask us this question at Puhl and Berbarie at MyFamilyLawyer.net. The Texas statutes, which contain all the applicable laws regarding child custody, provide that the court shall interview a child 12 years of age or older, and may interview a child who is under the age of 12 to determine the child’s wishes as to conservatorship or as to the person who shall have the exclusive right to determine the child’s primary residence.Such interviews must take place in the judge’s office, rather than in the courtroom, outside the presence of the parents and their lawyers. The interview does not diminish the power of the court to use its own discretion in determining the best interests of the child. Either parent or the judge can request the interview.In other words, the stated preference of a child is not binding on the judge and therefore a child can never make a legal determination about whether he should live with his father or his mother.For a period of time, a child 14 or older could sign a written affidavit stating a preference as to which parent he wished to live with, which likewise was nonbinding on the court. Later the age was dropped to 10, then raised to 12, and finally the entire provisions was repealed altogether. No sworn, written statements of a child are admissible into evidence or into the court’s record of the case.The rationale, after all these fits and starts in the law, is that children should not be expected to choose between their parents, or to make such life-altering decisions. In the end, it is up to the judge to consider all the facts, hear all the evidence presented in the courtroom, and make a judicial determination as to what will be best for the child.There is, of course, a difference between conservatorship and possession of a child. The primary conservator is the parent who has the right to establish the child’s residence, usually, but not always, within a stated geographic area. The other parent will, however, have the right to possession of the child on a specified schedule spelled out by the court or as agreed by the parents. Some courts recognize the difficulty of forcing an unwilling teenager to spend the night or a weekend with the non-primary parent, and may require the child’s consent to a visitation schedule.Please check with Puhl and Berbarie at MyFamilyLawyer.net for more information regarding child custody and contact us to speak with one of our Board Certified Family Law Attorneys.