Child Custody in Texas: Understanding the Role of Older Children’s Preferences

Texas law identifies a variety of factors and requirements for a court to consider when divorced or divorcing parents, or unmarried parents, are unable to agree on who should get custody of the children. All of these factors and requirements mandate that the decision as to “who gets custody” comport with a legal standard known as the best interest of the child.

Most of these factors and requirements focus on the parents themselves, including their parenting history; their personal circumstances, and their abilities to support the child’s needs. However, there is one particular area of Texas child custody law where the court can be commanded to take the child’s own choice or preference into account when deciding who gets custody.

Children 12 years of age or older – Allowing their Voice to be Heard.

Under existing Texas law, a child who is 12 years of age or older, can be interviewed by the Judge, and allowed to express to the Judge that child’s preference or wishes as to who should have custody of that child.

This request for the child to be interviewed is made pursuant to an application (known as motion) filed by a parent or other party or attorney involved in the case. If the application is timely and properly filed, and if the child is at least 12 years of age, the Judge must interview the child. The interview is typically undertaken privately in the Judge’s chambers, and the parents are usually not present during the interview.

Furthermore, the Judge is expected to give genuine and thoughtful consideration to the child’s own wishes and preferences, as expressed in the interview, in making the decision as to will get custody of that child or who gets to decide where that child will primarily reside.

What Parents Should Know About Custody Cases Involving Older Minor Children

When undertaking or considering a custody case involving a child aged 12 or older, it is helpful to understand a few key points:

• Children 12 years of age or older do not automatically get to select where or with
  whom they wish to reside. The process is handled through the court system, which
  requires the proper filings and court approval.
• The Judge may hear a child’s input, but the child does not have the final decision.
• The Court prioritizes the child’s best interests, not just preference.

It is also important to understand that custody cases involving a child aged 12 or older are not limited to where a child wants to live. Courts look at the full picture, including:

• The child’s emotional and physical needs
• The stability of each home environment
• Any changes in parental circumstances

Furthermore, the Judge has discretion in deciding when to interview the child. Many Judges prefer to delay interviewing the child until much later in the case – quite often, at the very conclusion of the trial.

Additionally, if there are multiple children of the parties (some of whom are under age 12) the Judge may also agree or choose to interview those younger children, as well. But the Judge is not required to do so. As most courts are disinclined to “split up” the children, the older child’s preference to primarily live with one of the parents may not be as compelling to the Court, if the Court believes the younger children’s best interests will be served by primarily living with the other parent.

Finally, all of these provisions regarding the interview process between the Judge and children is only applicable in nonjury cases. The child interview process does not apply in those infrequent cases where a jury will be making the final custody decision.

Why Choose Travis Thompson and Law Thompson, P.C.?

Whether your child expresses a strong preference as to where and with whom that child wants to live, or you believe a change is necessary due to a shift in circumstances, it is imperative that the attorney you hire have the experience and the know-how in navigating child custody cases involving older children. Because custody cases involving older children can be nuanced, working with an experienced attorney who understands Texas family law is essential.

The law firm of Law Thompson, P.C., has helped countless families in Harris County and surrounding counties with child custody cases. Led by attorney Travis Thompson, who has over 35 years of experience in family law and is certified by the Texas Board of Legal Specialization (TBLS) in the area of family law, we are well-versed in the legal standards that apply to custody changes and how to present your case clearly in front of a judge.

Let Us Talk About Your Custody Case

If you are going through a divorce in the Houston area involving custody of older minor children, or if you are are already a divorced or separated unmarried parent of older minor children in the Houston area who is considering bringing custody case involving your older minor children, then contact the firm of Law Thompson, P.C. at 281-369-8665, or contact us online today, and let our experienced lawyer and support staff help you protect what matters most.