A Child’s Preference – Deciding Where They Want to Live

It might be a scary thought to leave the choice of where a child lives up to the child themselves, but in Texas, the court has given some credence to that very choice.  Before 2009, the legislature allowed for a child in a suit affecting the parent-child relationship who was at least 12 years of age to sign an affidavit stating with which parent they wanted to live.  This document was then filed with the court hearing the case and used as evidence of the child’s choice of where to live.  Now, that law has been repealed, and there is a new law in place which increases the child’s involvement in the litigation.

That new law states that, if requested, a court shall interview a child who is 12 years of age or older in chambers when conservatorship or the right to designate the primary residence of the child is at issue between the parents.  If conservatorship or the right to designate the residence of the child is not at issue, but possession or access is, then the court may interview the child in chambers to determine their wishes, but it is not required.

Parents might be particularly concerned about this mandate upon the courts to interview children, especially when one parent attempts to involve the child in the litigation by instructing or coaching them to tell the judge that they want to live with that parent.  In addition, a parent might use the child’s choice about where they want to live against the other parent when it comes to visitation or allowing the other parent’s involvement with the child.

The courts are still left with the ultimate decision on whom a child ends up living, and will only use the child’s preference as a factor in determining where a child ultimately ends up living.  In addition, a court will likely not be pleased when they hear that a parent has used the child against the other parent or unnecessarily involved them in the litigation. A parent must be cognizant of all of these factors involved before they attempt to use their child’s wishes in a court proceeding against the other parent.

If you are considering a change in conservatorship or have been served with a lawsuit requesting such a change, you will most likely have to consider the possibility that your child could confer with the judge if he or she is over 12 years of age.  It is a step in a case where the potential benefits need to be weighed against the possible pitfalls.  An experienced family law attorney can help guide you through these different factors and help you decide whether asking the judge to confer with your child would be in the child’s best interests.

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