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Custody Disputes: Can My Child Choose?


The litigation that accompanies divorce and family law disputes can be challenging and unpleasant, especially when it concerns children and their custody preferences. While many Texas parents are aware that their child’s preference can influence the outcomes of custody rulings, some may be left with questions about the specific laws and practices that apply to these proceedings. For example, parents may not know when the court is required to speak with their children or when that decision is subject to a judge’s discretion. Additionally, parents may wonder what effect their child’s opinion may ultimately have on the court’s decision and whether they should encourage their child (or children) to testify.

According to Section 153.009(a) of the Texas Family Code, the judge in a nonjury custody proceeding must, upon request, interview in chambers a child who is twelve years old or older as to his/her custody preference. If the child is under the age of twelve, there is no requirement that the child be interviewed in chambers, but it may be done.  On the other hand, when the case is tried to a jury, the court is prohibited from interviewing a child in chambers regarding an issue to be determined by that jury (custody would be one of those issues).   It is vitally important to remember, though, that even in instances where children are interviewed about their preferences, neither the preference nor any information uncovered in the interview affects the court’s discretion and overriding purpose to determine what placement would be in the best interest of the child.

In addition to the applicable law and its effects, parents should be aware of several other practical considerations. For example, a parent should inquire about the court’s usual practice regarding who is allowed to be present during the interview with the child. If the opposing attorney is present, children may feel pressured to respond in a certain manner. To avoid this, parents may opt for the court to order a social study, in which an expert, usually a child psychologist, can testify as to the child’s choice of conservator based on the expert’s discussions with the child. Unfortunately, in some cases, parents resort to coaching and gift-giving in an attempt to influence a child’s custody preference, desiring to provide the child with “a better deal.”

From many years of experience in these types of cases, our attorneys are well aware of the challenges and questions which usually arise and look forward to assisting you in navigating your custody case or other family law matter. Contact us today for a consultation.

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