It happens. And, it is happening a lot more than in the past thanks to the 2009 Texas Legislature making the visit between your child and the Judge mandatory on certain issues and advisory on other issues. Assuming this avenue of inquiry has any merit at all in a child custody determination (which I personally don’t), then allowing a one to one chat with the Judge is far better than the old practice of getting the teenager to sign an affidavit expressing their “selection” of one parent over the other as to where they will live most of the time. Prior to abolishment in 2009 of the right to file affidavits signed by a child, I have seen an affidavit by a kid picking Mom filed on a Friday and an affidavit picking Father filed on the next Monday after Dad returned the child after his weekend. Ludicrous actions that were occurring all the time in the “selection of parent by affidavit era”.
The magic age now for your teenager to get this wonderful opportunity to pit parent against parent is 12. Over the years, the Texas Legislature has moved this age all over the dial – from 14 to as low as age 10 at one point! If you haven’t figured it out, I don’t like this part of our family law practice. It takes our Judges away from what they know how to do and should be doing (apply the facts to the law and make decisions accordingly) and makes them become mental health counselors for 20 minutes. It pits the child against the parents. It increases the costs of the litigation. It effectively authorizes a game of “hide the ball” between the litigants and the Court. And lastly, and the worst part of all, it empowers that child at age 12 to manipulate and gain power/control over both parents – even though one thinks at the time shoving that kid into seeing the Judge and picking them is going to be the panacea for all their custody problems. Nope – you’ve just created a far bigger teenage monster than the one you would have parented anyway. Set the age of choice for a child at 16 and I am fine. No parent has any consistent and regular control over a 16-year-old anyway – so let them decide to say whatever they want. Most Judges agree.
So, what to do when you learn your sweet child is going to go tell the Judge he or she wants to live primarily with the other parent? Manage it through your lawyer. First, understand the law. Seeing the Judge is mandatory for a child over 12 as to that child’s choice of conservatorships or wishes as to which parent has the right to determine the child’s primary residence (which parent the child will live with more). Seeing the Judge is only discretionary on the child’s wishes as to possession and access or if the child is under age 12.
One sure-fire way to stop this strategy cold is to file for a jury. The Judge can’t interview any child if a jury has been requested and paid for as to any issue that the jury will decide. This gets complicated but suffices it to say that filing for a jury will stop the interviewing process for all practical effects. However, willy-nilly asking for a jury trial then canceling that request as final trial approaches has lots of bad karma attached to that strategy. Only make that decision after long talks with your attorney. If you are the one who believes you have the edge with your child as to where that child wants to live, then press for the Judge to talk to the child as early as possible. If you are the one that is going to be the “second choice”- then postpone the inevitable as long as possible. Try and make it the last thing the Judge hears in your case. If you haven’t been able to convince the Judge you are the one best suited to be the primary parent for your child by that stage of the case, then it really won’t matter what your child wants to say. Often, at that point, the Court has already made up its mind and will only talk to the child because it has to – not for any other reason. Third, use the social study process to ameliorate and investigate any negative situations or choices that might be coming from your child. Fourth, if the child is in counseling use the counselor to show that the other parent is influencing the child to make this choice against you. If the child is not in counseling, get him or her into counseling immediately. Fifth, make sure your lawyer asks for a record of the interview. You won’t see it until the appeal but you need to eventually know what your kid told that Judge. It will make you a better-divorced parent no matter what was said.
Being chosen number “2” by your child is never fun. But it isn’t the end of the world in a custody determination. Judges are normally well equipped to see manipulation and deception from the child and the parent pushing for the interview – if it exists. Furthermore, Judges are not going to turn the world the child lives in over to that child at age 12 -18 – even if one of the parents is. The best insurance against a bad ending resulting from the child talking to the Judge is to have all the impactful facts of your case that show why you should be the primary parent presented to that Judge before the interview ever occurs. Most of the time a history of good parenting will win over a bribe of a bigger X-Box or fewer chores – however, all bets are off when the bribe is a new Mustang convertible to a 15-year-old about to turn 16. (Only kidding! I think)