It is the court’s primary focus to promote the best interest of all children involved in a custody case. This means, the court will make decisions they believe allow the child to develop safely even if they go against the child’s wishes. However, a child’s preference of home is one of the factors they will take into consideration when making their choice.
The Significance of “The Best Interest of the Child”
The previous section made reference to the phrase “the best interests of the child”. Texas law specifically states that the best interest of the child must be the court’s primary consideration in determining issues of conservatorship and possession of and access to the child.
To assist judges in making that determination, the Texas Supreme Court provided a list of factors for judges to consider. These include:
- the child’s desires
- the child’s immediate and future physical and emotional needs
- any immediate and future physical and emotional danger to the child
- the parental abilities of each parent
- the programs available to assist parents who want to promote the best interests of their child
- the plans each parent has for the child
- the stability of the home or proposed home
- any actions or failures to act that may indicate that the parents don’t have a proper parent-child relationship, and
- any excuse the parents may have for those actions and failures to act.
The fact that judges interview children doesn’t mean they have to adopt the children’s wishes as the basis of a custody decision.
Will the Court Consider a Child’s Preferences?
Yes, if the circumstances warrant it. Notice that the first factor in the “best interests” list above is “the child’s desires” .The Texas statutes provide some guidance as to how a judge should approach this. Texas Family Code – Chapter 153, section 153.009 states that if a parent, or an attorney appointed by the court to specifically represent the children’s interest, requests that the judge interview a child 12 or older, the judge must do so. For a child under the age of 12, the statute leaves it up to the judge to decide whether to speak with the child.
The judge will conduct a child interview in chambers (meaning in the judge’s office). A judge will usually permit the parents’ attorneys, and any attorney representing the children, to be present for the interview. If the child is 12 or older, a court reporter will make a transcript of the interview if the attorneys request it, or if the court decides to order it on its own.
The fact that judges interview children doesn’t mean they have to adopt the children’s wishes as the basis of a custody decision. The reality is that the court will assess a child’s maturity level and ability to make a sound, well-reasoned judgment. The older the child, the greater the weight the court will likely give that child’s preference.
A judge will also try to ascertain whether a child’s expressed preference is based on a parent’s undue influence. So a court is likely to discount a child’s wishes if it determines that one parent was constantly disparaging the other in front of the child, or if it appears a parent attempted to buy-off the child, such as with promises of gifts.
When it comes to a child’s preference, the court will base any decision on “the best interest of the child” standard.
When Can a Child Decide Which Parent to Live With in Texas?
Children can make that decision only when they’re no longer considered minors, which ordinarily means they’ve reached the age of 18. This rule also applies to whether a child can refuse visitation (access time) with a parent. Before that age, the ultimate determination of whom to live or spend time with rests with the parents (if they can agree) or the court.
A question may arise as to whether a 16-year-old can choose which parent to live with in Texas. There’s an exception to the rule that a child must be 18 years old. That exception exists when a court declares a child to be “emancipated,” (In Texas, emancipation is formally known as “removal of disabilities of minority.”) If emancipated, children will have the same rights as if they were 18.
Under Texas law, the court can grant emancipation if the minor is:
- a resident of Texas
- 17 years of age, or at least 16 years of age and living separate and apart from the minor’s parents, managing conservator, or guardian, and
- self-supporting and managing the minor’s own financial affairs.
Can My Child Decide Which Parent They Want to Live With?
No, but their wishes will be taken into consideration when the court makes the final custody ruling.
Custody Lawyer in Houston, TX
Marriages are different, making each divorce equally unique with its own set of needs that must be addressed. Contact our law office to explore your options moving forward, and find out how we can help you.
Renken Law Firm, PLLC
11500 Northwest Fwy #586
Houston, TX 77092
(713) 956-6767
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