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When Can a Child Decide Which Parent to Live With in Texas?

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    A custody battle is a stressful and emotional process for everyone involved.  Although the parents are the ones that primarily handle the process, the children are equally affected by the outcome.  Since the court’s ruling determines who will have custody, there’s a common misunderstanding whether the child has a say in the decision.  Provided that the rules vary depending on the state, today we’re going to focus on child custody laws in Texas.

    When Can a Child Decide Which Parent to Live With in Texas?

    There’s a common misconception that children can decide who they want to live with.  The decision is not entirely up to them, however, until they reach the age of 18.  This is because there are other factors to consider in order to determine who gets custody; we’ll discuss this more below.  

    While the child’s preference isn’t the deciding factor, it is taken into consideration by the court.  This is addressed in the Texas Family Code under section §153.009.  This statute states that both children over and under the age of 12 can be interviewed, though they have to be over the age of 12 to actually submit their preference to the court.  As stated in the official document:

    On the motion of a party, the amicus attorney, or the attorney ad litem for the child, or on the court’s own motion, the court shall cause a record of the interview to be made when the child is 12 years of age or older.  A record of the interview shall be part of the record in the case.

    This replaced the old statute that was previously discussed under section 153.008.  Under the old statute, children 12 and older would submit a written statement identifying which parent they would prefer to live with.  As with the new rule, they did not get to decide who they live with; instead it’s used as evidence to help support the court’s decision.  The issue that arose with these written documents was that the parents would persuade their children to sign the paper, therefore making it difficult to determine if the written submission was influenced by the parent.

    Under the new statute, children 12 years of age and older now meet with the judge to discuss the situation.  During this interview, the judge may ask about the child’s wishes in regards to who has primary custody, visitation rights, and any other issues that may be involved in the custody case.

    What Other Factors Are Considered When Determining Custody?

    As mentioned, the child’s statement is not the only factor considered by the court.  Section §153.009 says,

    Interviewing a child does not diminish the discretion of the court in determining the best interests of the child.

    This is because children can sometimes be persuaded by certain things.  For instance, they may enjoy spending time with one parent because they don’t enforce as many rules.  This, however, doesn’t necessarily translate into being the best choice for the child, so other factors are taken into consideration.

    Other factors that are considered by the court include:

    • Lifestyle of each parent
    • The parent’s ability to provide for the children (food, clothing, etc.)
    • The impact that the change may have on the children
    • Emotional bond between the children and the parents
    • Mental and physical health of parents and children
    • The current living pattern of the children
    • Safety and wellbeing of the children

    Different Types of Child Custody in Texas

    There are 3 main types of child custody agreements that the parents and/or court has to choose from.

    Joint Custody

    Joint custody is preferable because it allows both parents to continue raising their children.  Though one parent is awarded primary custody, the other parent will get certain visitation rights.  Visitation rights will vary depending on the situation; while some parents only get their children every other weekend, others see their children Monday through Wednesday, and so on.

    Joint custody also allows both parents to make decisions when it comes to the children.  This includes educational and medical decisions.

    Sole Custody

    Sole custody is granted to one parent if the court deems the other parent unfit or absent from the child’s life.  This isn’t the preferred method, as the idea is to keep both parents in their child’s life, but sometimes it’s in their best interest.  That said, the other parent can still get visitation rights if the parents and/or attorneys agree upon a schedule.  Even if they do have visitation rights, the parent with sole custody makes the decisions when it comes to how they raise their child.

    Third Party Custody

    Third party custody, otherwise known as non-parent custody, is when an adult who is not the child’s parent is granted custody.  This happens when both parents are deemed unfit, the parents are deceased or not present, or if they’ve been under the constant care of another relative or guardian for at least 6 months.  In any of these situations, the closest living relative or the person who has been caring for the child will have to file a custody suit.

    Are you fighting for custody of your children?

    Custody battles should be taken seriously as they determine who will have primary custody of your children.  At AMS Law Group, we specialize in different areas of family law, including child support and custody modification.  If you’re in the process of fighting for custody, we’ll inform you of your rights and help you throughout the entire process.

    By having an experienced lawyer by your side, you’re better enabled to handle the legal process, therefore improving your chances of winning the case.

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