The following is provided for informational purposes only and is not, nor should it be construed as legal advice.
Many clients ask me at what age their child can choose with which parent the child primarily resides. I am also frequently asked when the child can refuse to go with the other parent. Parents routinely tell me that they have heard that a child has the right to select which parent the child lives with when the child turns twelve years of age and that a child can decide when the child visits the other parent once the child is in high school. These are misconceptions of the law in Texas.
The Texas Family Code provides that a child who is twelve (12) years of age or older may express their desire regarding which parent he/she would like to have the exclusive right to determine the child’s primary residence in an in-chambers interview with the Judge. If an interview is requested, the Judge must interview the child. Typically, the Judge will interview the child in the Judge’s office at the conclusion of the trial after all evidence has been heard. By waiting until all evidence has been submitted, the Judge has an understanding of the concerns both parents have regarding possession of the child. The Judge will take time to establish a rapport with the child and listen to the child’s concerns. The Judge does not automatically “rubber stamp” the child’s request. The Judge is not required to follow the child’s request. The Judge must still make a “best interest” determination regarding which parent should be awarded the exclusive right to designate the primary residence of the child. Further, a parent can only request this interview with the Judge if the pending case is a non-jury case. If either party has requested a jury, the interview with the Judge cannot be conducted.
Any time a Judge interviews a child in chambers, the Judge may permit a party’s attorney, the Amicus Attorney, the attorney ad litem, or the guardian ad litem to be present during the interview. If requested by a parent or an attorney, the Court is required to make a record of the interview when the child is 12 years of age or older, and the record of the interview becomes a part of the record in the case. This means that the parent may find out what the child has told the Judge. The presence of the parent’s attorney and making a record may have an effect on the child’s willingness to speak honesty with the Judge.
Visitation issues with older children, particularly teenagers, can be very complicated. As the child becomes older, he/she becomes more independent. Many teenagers start driving at 16. School activities become more time consuming and teenagers begin spending more time with their peers than their parents. However, none of these factors permit the child to decide whether or not to visit a parent in accordance with a court ordered possession schedule. If a parent wants to force the visitation, that parent may demand possession of the child pursuant to the court order. If the child does not comply, the parent in violation of the order may be held in contempt of court. A petition to modify the order should be filed requesting a new possession order considering the changed circumstances of the child. In this situation, the parent may request the Judge interview the child regarding the child’s desires regarding possession or access. However, the Judge is not required to interview the child when only possession and access are at issue.
Children are subject to possession orders until they reach the age of eighteen (18). Parents must comply with the possession order or they may be penalized. The child may voice an opinion as to custody and access but it is only an opinion, not a mandate. The Judge has the ultimate authority.
© 2017 Randy R. Rowney
Randy R. Rowney is admitted to practice before all Texas as well as the Federal Courts for the Southern District of Texas. He has been practicing law since 1983 and concentrates his practice in the area of family law. Mr. Rowney is a member of the law firm, Currin, Wuest, Mielke, Paul & Knapp, PLLC (“CWMPK”) located at 800 Rockmead Drive, Suite 220,, Kingwood, Texas. In addition to the areas in which Mr. Rowney practices, other attorneys at CWMPK concentrate their practice in areas of civil and commercial litigation, estate planning, probate, family law (including divorce and custody issues), business operations and formation, construction, real estate, immigration and bankruptcy. For more information, please call 281.359.0100 or see the CWMPK website at www.cwmpk.com.