Can a Child Choose Which Parent to Live With in Texas?

No matter how hard both parents try, divorce is hard on the kids. Discussing custody and negotiating a separation agreement is a convoluted process. As much as we shelter them, the children pick up on our emotional state and know when something is wrong. That’s why it’s important for parents to do everything they can to make things easier for their little ones. Sometimes, that means making tough calls, and other times it means taking into account the child’s preferences. 

If you’re going through a divorce, the Davis, Ermis & Roberts P.C. is here to help you navigate this difficult process and provide legal advice. The question we get fairly often from our clients is whether a child can choose which parent they want to live with. Today, we’re answering that question and deciphering that particular part of the Texas family code for you.

At What Age Can a Child State Their Preference?

A child cannot choose which parent to live with after the divorce. However, that doesn’t mean the child doesn’t have a chance to voice their opinion and preferences. Under Section 153.009 of the Texas Family Code, a child can file with the court the name of the parent they prefer to live with. However, to do that, the child has to be 12 years old or older. 

People often misunderstand this piece of family law. It doesn’t mean that if a child is age 12 or older, they get to pick the parent they want to live with. It just means that the child has to be at least 12 years of age to get the court to consider their opinion.

Until 2010, the children were allowed to submit a written statement stating their preferences. However, that law was abolished due to too much tampering. 

We have to remember that even though 12-year-olds can be mature, they are still impressionable. Child custody attorneys will be the first to tell you just how true that is. We’ve seen it all, from bribing children to getting them to sign statements without even a smidge of consideration for their preferences. Those statements were considered written evidence that the judges took into consideration while ruling on the matters of custody and conservatorship over a minor.

How 153.009 Changed Things

The court always tries to keep the child’s best interest in mind while making decisions. That’s why the old Section 153.008 of the family law is no longer valid. Now, the parents can submit a request for the child (or children) to see the judge and talk to them in person. That way, the judge can have an interview with the child and truly hear their preferences.

Sometimes, the judge will request an interview with the child even if the child isn’t 12 years old or older. However, that’s at the discretion of the judge. If the child is over the age of 12 and the parents submit the request for the judge to talk to the child, the interview has to happen.

The child’s guardians, parents, and attorneys aren’t present during the interview. Only the court reporter, the judge, and the child are allowed within the judge’s chambers. However, sometimes, the judge will request an amicus attorney. Their role is to ask the child and any other relevant individuals who are involved in the child’s life questions that would help the judge make a decision.

The Child Does Not Get to Decide

The judge will hear the child’s preferences out, but they won’t always oblige them. The judge will make a decision based on the circumstances, while always considering the best interest of the child. Those aren’t always aligned with the child’s wishes.

Contact Davis, Ermis, & Roberts P.C. for Legal Advice Regarding Family Law

Fighting for child custody is an uphill battle. That’s why it’s vital that you have the right people on your side. Having knowledgeable attorneys who know the family law by heart and will fight for you and your child’s best interest can make the whole ordeal a bit easier. 
Call Davis, Ermis & Roberts today and schedule your first consultation. With decades of experience under our belts, we can and will help you through your divorce and custody agreements.