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Giving Children a Voice in Custody Disputes

Many people ask: Can my children decide where they want to live in a divorce? There are many ways for a court to consider children’s input about where they want to live.

The first way is simply allowing children to talk to the judge. Section 153.009 of the Texas Family Code allows a parent to request that a judge interview the child in chambers to determine the child’s wishes regarding certain aspects of custody. If a child is over the age of 12, it is mandatory that the judge interview the child on the request of a parent. A judge may also interview a child under age 12. It is important to know that 12-year old children cannot actually decide where they where they want to live. They will not be providing the “final say.” Instead, the child’s wishes will just be one factor that the Court considers in addition to other important information. Another thing to keep in mind is that this process can be traumatic for children. Sitting in a judge’s chambers can be very intimidating for a child, and a child could be negatively impacted by the pressure of such a weighty decision. However, many times, a child’s input can be very important in a child custody dispute, and so there are other means to obtain the information indirectly.

Another way to get a child’s input in child custody litigation is through a Child Custody Evaluation. In Texas, the only mental health professional that may make recommendations as to possession and conservatorship for children is a child custody evaluator. The Texas Family Code provides very detailed requirements for a child custody evaluation, which includes interviews of each parent and anyone living in a house with the child, interviews of the child, and observations of the home environment and each parent’s interactions with the child. The child custody evaluator will therefore be able to talk to children about where they want to live, and will do so in conjunction with a much broader study into the children’s home environment and what will ultimately be in the best interests of the children.

There are additional ways to get a child’s input indirectly. For example, a judge may appoint an Attorney Ad Litem to voice the child’s wishes or an Amicus Attorney to advocate for the best interests of a child. In either role, an attorney would join the litigation as a third lawyer in the case to provide the judge with recommendations from the child’s perspective. As another option, if a child is treated by a mental health professional, that professional may testify in general about the child’s perceived relationship with each parent.  This testimony may not include any specific recommendations about possession, but it can still be valuable information for a judge making a decision about custody.

Talk to a family lawyer for more information about your specific situation. For more information on child custody disputes or divorce in Texas, contact the attorneys at McClure Law Group, PC, by calling 214.692.8200 to schedule a consultation.