In Texas, a child cannot unilaterally decide which parent to live with until they reach the age of 18. However, the law does allow children to express their preferences regarding custody arrangements but with some caveats.
How a Child's Preference Is Considered
For Children 12 and older:
Under Texas Family Code §153.009 (a), in a nonjury trial, if a parent, an Amicus Attorney, or an attorney ad litem requests it, a judge shall interview a child who is 12 years or older in chambers (a private setting) to determine the child’s wishes as to conservatorship, and who will have the right to determine the child’s primary residence. In addition, the judge may on his own motion interview the child to ascertain the child’s wishes as to conservatorship, and who will have the right to determine the child’s primary residence.
Under Texas Family Code §153.009 (b), In a nonjury trial or at a hearing, on the application of a party, the amicus attorney, or the attorney ad litem for the child or on the court's own motion, the court may interview the child in chambers to determine the child's wishes as to possession, access, or any other issue in the suit affecting the parent-child relationship.
For Children under 12:
Under Texas Family Code §153.009 (a), In a nonjury trial or at a hearing, on the application of a party, the amicus attorney, or the attorney ad litem for the child, the court may interview in chambers a child under 12 years of age 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.
Clarification:
Assuming a motion is made:
Judge has no discretion and must meet with child - If child is 12 or older, the judge must interview the child to find out the child’s wishes as to conservatorship, and which conservator shall be the conservator who has the exclusive right to designate the primary residence of the children.
Judge has discretion and may meet with child but is under no obligation to meet with the child. If child is 12 or older, the judge can interview the child to find out the child’s wishes as to possession, access, or any other issue in the suit affecting the parent-child relationship.
Judge has discretion and may meet with child but is under no obligation to meet with the child. If child, is younger than 12, the judge can interview the child to find out the child’s wishes as to conservatorship, and which conservator shall be the conservator who has the exclusive right to designate the primary residence of the children.
Does the judge have to do what the child requests?
NO. It's important to note that even if the judge meets with the child, these preferences are just one of many factors considered in determining the child's best interests. The judge is not obligated to follow the child's wishes.
What are the factors influencing the decision of the judge?
· The child's emotional and physical needs
· Each parent's ability to provide a stable environment
· Any history of abuse or neglect
· The child's relationship with each parent
· The child's preference, especially if they are 12 or older
These considerations are guided by what's known as the "Holley factors," established in the case of Holley v. Adams. Holley v. Adams, 544 S.W.2d. 367 (Tex. 1976).
Modifying Custody Based on a Child's Preference
If a child aged 12 or older expresses a desire to live with the other parent, this can be grounds for modifying an existing custody order. However, the court will only approve such a modification if it determines that the change aligns with the child's best interests.
Conclusion
While children in Texas, especially if aged 12 or older can express their preferences regarding custody, the final decision rests with the judge, who will consider a range of factors to determine what arrangement serves the child's best interests. If you're involved in a custody case, consulting with a qualified family law attorney can provide guidance tailored to your specific situation.
