Can my child choose which parent to live with in our divorce (or child custody) case?
We often hear whenever child custody is an issue within a divorce involving younger children, parents asking if their children are able to choose who they want to live with.This is one of those questions that we hear frequently. This is a complex question, and the answer is often misunderstood. The statute that covers this is found under Section 153.009 of the Texas Family Code, which repeals the old law under Sec. 153.008.
Under the old law, a child age 12 or older could file with the court, the name of the parent who the child wants (or chooses) to decide where the child should live. This law applied only upon the court’s approval, while the child themselves didn’t have the right to determine who they would live with after the divorce.
When asked in front of the judge, the child was able to state his or her preference of which parent they would prefer to have custody and the court would make the final decision at a later time after all evidence and the statement were reviewed.
This is where the common misconception stands out. Parents thought they could know by the child’s decision alone that they could choose which parent they lived with. However, it was only filed as “evidence” to be considered alongside the rest of the evidence. However, this law was repealed and replaced with what the Texas Legislature deemed a more appropriate procedure.
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What Age Does a Child Have a Say in Custody?
To have a child’s request to live with a specified parent added into evidence, the child must be at least 12 years or older. While the child may state their request, the judge makes the ultimate decision in these cases.
At What Age Can a Child Decide if They Want To Visit the Other Parent?
Both parents and the children involved in a child custody ruling must abide by the decisions until the children reach the age of 18 and become legal adults, capable of making their own decisions.
Texas Family Code 153.009
Under Texas Family Code 153.009, children have a voice but in a more practical way. Sec. 153.009 allows parents to request that the judge speak with their child. If the child is aged 12 or older, the judge must meet with the child. If the child is not 12, the judge isn’t required to meet with the child.
The new law does more than address where the child will live, it also touches on visitation and a number of other issues in which the child may have an opinion or preference. Under the new law, a child can meet with the judge and voice his or her opinions on visitation, (if the judge agrees to hear the evidence).
It’s important for parents to understand that while their request for an interview between the judge and their child may be granted, the interview is still evidence that the court may use to make a decision. As before, the judge is still the one who ultimately makes the decision regarding custody (unless a parent chooses to submit his or her case to a jury) and possession or access; the law does not require that the judge follow the child’s wishes.
