My Child Can Choose Which Parent to Live With…Right?

It is a common misconception that a child over the age of 12 can simply elect which parent he or she wants to live with. I can’t tell you how many clients have walked in to my office having heard this and hoping that it will be that easy. I hate to be the bearer of bad news, but that is not the case.

Here’s the problem: we cannot tell the Court anything that we learned solely from being told by one of the children, as it would be hearsay. Let that sink in. If your child tells you they want to live with you instead of that rotten other parent, you aren’t even allowed to tell the Judge about it.

So what can we do? Well, the Texas Family Code allows us to request that the Judge talk with the child in private. However, unless the child is over the age of 12, the Judge can decide not to. This is the likely progeny of this rumor that 12 year olds can choose where they live. The rule is simply that the Court is required to meet with the child in chambers if the child is over 12, whereas they can refuse, and often do, if the child is under 12. That is it. And even after the Court conferences with the child, they aren’t under any obligation to even consider the child’s wishes. In fact, speaking with most local judges, a lot of times they won’t even discuss the parents, and just interact with the child for a brief time.

What does this mean? Well, it depends on your case, but it certainly means that your child isn’t going to get to decide which parent to live with. If this sounds like your situation, it is time to have a serious discussion with a dedicated family law attorney. To schedule a consultation, contact us today.