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When Can My Child Choose Which Parent to Live With?

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One of the most common questions that divorcing parents ask before a Texas child custody agreement is drawn up is, 'When can my child choose which parent to live with?' The answer is, 'Never.' At the Law Offices of Stephen Clark, we try to explain to our clients that how the judge determines child custody depends on a number of factors, including the child's age and emotional maturity. Under Texas law, a child of at least 12 years of age or older has the option of stating their preference to the Texas courts, but it is ultimately up to the judge to make the final custody determination. If your child has expressed an interest in living with one parent over the other, contact our Dallas child custody lawyers to learn more about how we can help you and your child make your wishes known to the judge.

How a Texas Judge Makes a Determination

Under Texas Family Code, 153.009, upon an application to the judge by any party to the suit (parent, lawyer, legal representative of the child, or the judge himself), the judge must interview the child in his or her private chambers to determine the child's wishes regarding conservatorship and primary residence. However, even if the child states his or her preference, it does not mean that the judge will automatically place the child in the care of the parent whom the child prefers. Under section 153.009(c), the interview is used as guidelines for the judge, but 'does not diminish the discretion of the court in determining the best interest of the child.'

Furthermore, even if the judge does not feel as if the child is emotionally ready to make such a large decision on their own - or even if they feel that an ongoing relationship with both parents is in the best interests of the child - the judge is legally obligated to grant a child who is at least 12 years of age the interview when requested by the child or any party to the suit. When interviewing the child, the judge will seek to learn why the child wants to live with one parent over the other-if it was the child that requested the interview in the first place. Sometimes, the child will reveal that one parent's home is an unstable, violent environment in which they do not feel safe or comfortable. In such an instance, the judge would likely grant the child's request. However, in other instances, the judge might learn that one parent is more lenient than the other regarding rules and curfew, or that one parent lives closer to the child's best friend than the other. If this is the reasoning that a child gives, the judge will likely dismiss the request and keep the custody arrangement as is.

Finally, because it is Texas's policy to encourage frequent and continuing contact with both parents, a child's preference cannot be used as the sole determining factor when deciding which parent the child will live with. So long as both parents continue to show their ability to care for and provide for the child, the Texas courts will likely decide that both parents should have a part in raising the child (Texas Family Code, 153.001).

Consult a Dallas Child Custody Lawyer

At the Clark Law Group, our Dallas child custody attorneys provide the legal representation our clients need to achieve the custody outcomes they desire. If you and your child feel that it would be in your child's best interests to live with one particular parent over the other, contact our law offices today at 469-906-2266 to consult with one of our attorneys regarding your legal options.

(image courtesy of Scott Liddell)

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