There are a number of considerations that go into a Texas court’s
custody decision, one of which is the child’s preference. However,
the weight of a child’s preference will depend on the circumstances
of the case, such as the age of the child and other relevant “best
interest” factors. In today’s blog, we will discuss how a
child’s preference might be considered in a court’s custody decision.
Determining Child Custody in the Child’s Best Interests
Keep in mind that Texas family law strives to protect the parent-child
relationship in any divorce. So, when considering the
custody decision, the court will seek to facilitate frequent and continuing contact
between children and parents who are able to act in the best interests
of their child and provide them a safe, stable, and nonviolent environment.
That being said, the best interests of the child
- the child’s physical and emotional needs;
- any physical and emotional danger to the child;
- the parental abilities (fitness) of each parent;
- the programs available to assist parents who want to promote the best interests
of their child;
- each parent’s plans for the child;
- the stability of the home or proposed home;
- any actions or failures to act that may indicate that the parents don’t
have a proper parent-child relationship; and
- the child’s desires.
How Much Does the Child’s Preference Weigh?
As listed above, the child’s wishes are considered by the court in
the custody decision. However, as to how much weight the child’s
preference may carry, it is to the court’s discretion. In general,
a child aged 12 or older may express their preference to the judge in
an interview in chambers (the judge’s office), where the parents’
attorneys may be present. In general, the older the child, the greater
the weight the court will likely give that child’s preference.
just because a judge interviews the child about their preference does not
mean they must adopt the child’s wishes. The court will appropriately assess the child’s maturity level and
ability to make a sound judgment in order to decide whether to factor
in their wishes. For instance, if a child wants to reside with one parent
because that parent frequently buys them new games to play, that may not
be considered a sound reason for wanting to stay with that parent. A judge
may also discount a child’s wishes if it finds that the child’s
preference is based on a parent’s undue influence, such as if they
constantly speak ill of the other parent in front of the child in an attempt
to sway their opinion of the parent.
Once a child turns 18 years old, they have the right to make their own
decision regarding custody and visitation. For instance, they have the
right to refuse visitation with a parent once they are adults. However,
before that age, unless they are emancipated minors, the court decides
these matters for the child.
Let an Experienced Houston Lawyer Help
Child custody is understandably one of the most important and consequential
matters of a divorce, as it determines how much time you get to spend
with your child and where their future will pan out. Depending on the
child’s age, they may have a say as to who they wish to reside with,
but this will be evaluated in relation to numerous other factors, such
as the fitness of each parent’s child-rearing abilities and the
stability of the home. The weight of a child’s preference is determined
on a case-by-case basis, but it is a considerable factor nonetheless.
If you have questions about your child and the custody decision in your
divorce, contact our attorney at the Law Office of Kathryn Marteeny
to discuss your situation.