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Ask The Lawyer

Posted by: tdt -

I remember reading in your column that a child can have a say about which of his or her parents they live with once they are 12.  Did the law change?

    Question:  I remember reading in your column that a child can have a say about which of his or her parents they live with once they are 12.  Did the law change?

    Answer:  Yes.  The 81st Legislature saw fit to repeal Texas Family Code Section 153.008.  That section had provided that a child may sign a “choice of managing conservator,” indicating the child’s preference regarding which parent to live with.  The “choice” was not automatic, but did eliminate a requirement to show an emergency before a party could request a temporary hearing to determine if a change in conservatorship was in a child’s best interest.

    Last September, the option was eliminated.  Texas Family Code Section 153.009 now requires that a court (which means the Judge) interview a child in the judge’s chambers to discuss the child’s desires.  Keep in mind that when a child signed a choice of managing conservator, the child may still have been interviewed by the judge should either party make the request.  Now, a party may make the request unless the case is heard by a jury.  In that instance, the judge is no longer the trier of fact, but the jury would decide which parent a child would live with.

    Under the old law, the judge did still have to give approval concerning the child’s preference, but what the child wanted was an important factor that the judge must consider.  When parents divorce only one of them may be named as the parent with the right to designate the child’s primary residence.  That makes sense when considering the school district a child resides in or which address to use for doctors’ and other records.

    The old law also assumed that because a child may file a written preference at age 12 that the entire process would be easier overall.  The repeal of that law may have largely been due to a growing concern that a young child is easily influenced by a parent who takes that child to the parent’s attorney to sign the document, or that younger children really do not understand what is in their own best interest.  

    The new requirement presumes that a judge, especially a judge who presides predominantly over family law cases, is in a good position to evaluate the child’s wishes.  The judge may ask the child questions to determine if the child is mature enough to change from one parent’s household to another in modification cases, or which parent to live with when the family has split up and is divorcing.  An interview by a judge may lead to better outcomes because of a judge’s experience in interviewing and in resolving family law matters.  

    Whether the repeal of the law makes an impact on cases involving conservatorship is yet to be seen.  Back when the law was new, people did file modifications hoping to change their conservatorship arrangements.  The repeal will not likely see a race to the courthouse, and in fact, could lead to fewer custody battles because a judge could potentially provide his or her inclination to the parties after an interview with the child, or children.  Further, the repeal may help to limit an ongoing problem of parental alienation, where one parent puts a great deal of pressure on the child to end their relationship with the other parent.

    This article is meant for informational purposes only and not as a substitute for sound legal advice.  Direct questions to Ask the Lawyer to or via the Facebook page for the Dalhart Texan.

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