When parents are divorcing there are always lots of questions about how the divorce process works when it comes to the children from the marriage. Most of the questions are the same for both moms and dads. A divorce involving kids will include discussing parenting schedules, child support, rights and duties of each parent and health care. The idea of child custody includes parenting schedules and the rights and duties of the parents and each parents title or role, for example joint managing conservator or sole managing conservator.
Often, parents ask me about the idea that a child can choose to live with one parent or the other in a divorce (conservatorship). One of the most misunderstood and misquoted parts of the Texas Family Code is the section that allows a child to discuss their opinion regarding conservatorship. Below are some general principles regarding a child’s preference being used in a child custody case in Texas. These are not all of the concerns and should not be considered legal advice. Please seek legal advice regarding your particular case if you have a question.
1) Can a child choose which parent they want to live with?
No, it isn’t that simple. A child cannot choose which parent they want to live with when the divorce is final. The statutes in Texas are very specific regarding a child’s opinion and how it is involved in a matter before a judge. A court (judge) shall interview a child upon a request that is allowed by the statute or by the judge’s choice if the child is 12 years old or older and may interview a child after a proper request or choice of the judge if the child is less than 12 years old. And, even in if the court interviews the child; the decision is still made by the court in considering the best interests of the child.
2) Why can’t my child just sign an affidavit saying they don’t want to live with the other parent?
The Texas statute is very specific about how, when and where the child can be interviewed about their wishes about conservatorship or which parent will make the decision about where they will live. Even with an interview of a child in a contested case, the Judge still has the discretion to make the decision. The idea that the decision is one for your child to make is the wrong idea. This is definitely a question to discuss with your lawyer because it may be harmful to your child or your case if you ask your child to sign an affidavit choosing one parent over the other.
3) My child doesn’t want to go see the other parent. What should I do?
This is a very tough question because the answer depends on many factors specific to each case. Some of the considerations to remember are 1) the age of the child, 2) what is going on in the child’s world, for example, is it summer and he doesn’t want to leave his friends, 3)is this the first time this has happened or is there a pattern. Ultimately, though this is a question that you should consult an attorney about to make sure that you are following the terms of your Divorce Decree and to see if there are any other options available for you.
If you think your case may involve some of these issues, seek a family law attorney to consult with as this is general information and not intended as legal advice.