Can a Child Choose?
There is a common misconception that when a child reaches a certain age, he can decide which of his parents he will live with. This is not accurate.
A child’s residence is an adult decision made by the adults. Hopefully, it will be decided by the parents, who decide together based on what is best for their child. If the parents can’t reach an agreement, the judge will decide. Under Texas law, “[t]he best interest of the child shall always be the primary consideration of the court.” (Texas Family Code §153.002)
A judge can certainly take a child’s wishes into consideration. If you believe that your child does have a strong preference, your attorney can file a request with the court, which is called a “Motion for Court to Confer with Child.” If the child is twelve or older, the judge must grant this motion. At a specified time, the parents will be asked to bring the child to the courthouse, and the judge will bring the child back into her office for a private talk. And that’s what it will be—a private conversation. No one else will be in the room. (There may or may not be a court reporter making a record of the conversation; if a record is made, it will likely be sealed and unavailable to the parents or their attorneys.) The judge will not ask the child who he wants to live with; she will ask the child to tell her what he likes about Mom’s house, Dad’s house, how he is doing in school, and what activities he enjoys. Our family court judges have been doing their jobs for a long time and know how to get to the bottom of things without putting a child “on the spot.” And they are very good at figuring out if the child has been coached!
This conversation may help the judge to what is best for the child. The child’s preferences are just one factor among many. Other considerations are the child’s emotional and physical needs, any possible physical or emotional danger to the child, the parenting skills of the parents, the stability of the home where the child will live, the support systems available to the parents (through governmental agencies, friends, extended family, etc.) The judge will consider which parent is most likely to encourage and foster a positive relationship between the child and the other parent. She will also consider the long-term stability of the child—will living with one parent or the other means a change of homes, schools, and neighborhoods? “The need for permanence is the paramount consideration for the child’s present and future physical and emotional needs. The goal of establishing a stable, permanent home for a child is a compelling interest of the government.” (Hann v. TDPRS, 969 S.W.2d 77, 1998)
I believe that adults should make adult decisions without putting children in the middle. Children should certainly be listened to and allowed—even encouraged—to express their feelings, but it is never helpful (or healthy) for a child to be used as a rope in the parents’ legal tug-of-war.
***THE ABOVE IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE CONSIDERED LEGAL ADVICE***