Child custody cases are tough. As parents, the living situation for your children is always top of mind when you begin any kind of legal process involving your children. There are a lot of moving parts that parents have to worry about, but often, children are worried too. For children, there are so many elements changing in their lives that it may become overwhelming. In fact, at some point, the child may begin expressing their desire to live with the other parent on a primary basis.
There was once the presumption that children should stay with their mother following a divorce. Times, however, have changed and the courts no longer uphold this belief. In fact, there are laws that state that there is no custody preference for women over men. One of the most important factors a court uses to determine who should be the primary caretaker of the child is who has been the primary caretaker in the past and who has the ability to be a primary caretaker in the future.
My child wants to live with me, what do I do?
In Texas, the Court, or the parties, must create a parenting plan for the children that includes where and with whom the children will live most of the time. When your child begins expressing that they want to live with you over the other parent, it may be tempting to simply make the decision without court involvement—especially if the child’s other parent is in agreement. However, because parenting plans are often filed with a court, it’s important that any modifications you agree on with your child’s other parent be updated and reflected with the Court. Doing so will protect all parties involved from the stress of fighting over custody should either party decide to change their mind. A free consultation with a child custody lawyer can help answer some of the questions you may about your case.
When can a child choose which parent to live with in Texas?
The Texas Family Code specifically addresses that a child may express which parent they’d prefer to live with once the child reaches the age of 12. If the child is age 12 or older, upon motion by a party, the Court will interview the child in chambers regarding their wishes as to the following:
- Conservatorship
- The child’s primary residence
- Possession
- Access with the other party
If the child is under age 12, if a party requests the Court interview the child, it is up to the Court’s discretion as to whether that interview will take place.
Generally speaking, a Judge will first hear evidence from the parents, and any other witnesses, to establish necessary background facts that the Court will consider when interviewing the child. Ultimately, the Court will still make its decision based on all of the evidence and may make decisions contrary to the desires of the child.
The attorneys for the parties or the child can choose to be present during the interview or allow the Judge to interview the child privately. Also, if a party requests, a record can be made of the interview. More often than not, the attorneys do not attend the interview and a record is not made, due to the stressful nature of the interview for the child.
The best interests of the child standard
While it is hard to define exactly what the Best Interest of the Child means, the purpose of such a standard is to ensure the child’s happiness, mental health, emotional development, and security are being met. In other words, a parent’s preference or child’s preference will not be a higher priority over what is actually best for the child.
A non-exhaustive list of factors used to determine the child’s best interest are:
- Any special needs that the child may have
- The mental and physical health of parents
- Child’s own wishes
- Need for a stable home environment
- Adjustment to the community
- Interactions and relationships with any other members of the household
- Evidence of abuse or neglect
No matter the type of evidence that you have, it is important that you have a knowledgeable and experienced attorney by your side to help you present that evidence to the Court. Contact our office today to schedule a free consultation to speak to one of our divorce attorneys.
Can a child choose which parent they live with?
The court will take a child’s preference into consideration when making a decision about where they should primarily reside. In addition to the child’s wants, the Court will also consider many other factors in making its decision, including the following:
- Relationship between the child and parents.
- The parents’ wishes.
- The parents’ ability to meet the child’s current and future developmental needs.
- The ability of each parent to provide adequate food, shelter, medical care, clothing, and a safe environment for growth and development.
- The ability of the parents to communicate and cooperate with each other.
- Quality of the child’s adjustment to the child’s school and community and the potential effect of any change.
- Mental and physical health of everyone involved.
- Ability and disposition of each parent to foster a positive relationship and continuing contact with the other parent.
- A child’s relationship with any other person may significantly affect the child.
- The ability of the parents to communicate and cooperate with each other.
- Any evidence of abuse.
It is important to consult with a skilled attorney when deciding whether or not to ask the Court to interview your child. Children will often tell each parent they want to live with that parent primarily to avoid conflict or being in the middle. Also, it is important to consider how the Court may view your request to interview the child and whether or not such a request could ultimately hurt your case. Last, don’t resort to bribing the child or coaching the child with what to say, that is a surefire reason you will not be named as the parent who establishes the primary residence of the child.
Child custody in Texas
In Texas, child custody is referred to as conservatorship. The law presumes the parents should be named Joint Managing Conservators. Within a Joint Managing Conservatorship, there are certain rights and duties that a parent has at all times, and there are certain rights and duties that can be independent to both parents, exclusive to one parent, or subject to the agreement of both parents.
In cases of abuse or neglect that occurred within the two years preceding or during a custody proceeding, a court can name a parent a Sole Managing Conservator and the other parent a possessory conservator. This label is reserved for serious offenders and should be carefully considered before asking a Court to make such a designation.
Also, it is important to understand that whether a parent is named a Joint Managing Conservator, a Sole Managing Conservator, or a possessory conservator, that parent will always have certain parental rights and in most cases be allowed access to the child.
We care, we can help.
Here at The Carlson Law Firm, we understand how hard the transition of a divorce is for all parties involved. However, it is important to protect the child or children involved and enter the divorce process with precaution to not cause more trauma. We want to help and alleviate as much stress as possible. Contact one of our family attorneys to discuss your legal options. We care, and we can help.
