Categories: General Date: Apr 7, 2009 Title: Ask the LawyerI am a teacher in Dalhart. I often hear children talking about having the right to choose which parent they may live with. I have even heard them talking about being able to choose to live with someone other than one of their parents. I have heard them talk about having the right at age 13 and age 14. Is this correct? Can a child choose who they live with when they are 13 or 14?
By Robin Scott, Attorney at Law
“Can a child choose who they live with when they are 13 or 14?”
Question: I am a teacher in Dalhart. I often hear children talking about having the right to choose which parent they may live with. I have even heard them talking about being able to choose to live with someone other than one of their parents. I have heard them talk about having the right at age 13 and age 14. Is this correct? Can a child choose who they live with when they are 13 or 14?
Answer: The Texas legislature has provided a statute that states that a child who is 12 years of age or older “may file with the court in writing the name of the person who is the child’s preference to have the exclusive right to designate the primary residence of the child, subject to the approval of the court.” The statute does seem vague or ambiguous as to “person.” The statute has not used the word “parent.” The reason for the usage of the word person is that not all children live with a parent or parents.
The most significant words in the statute are probably the words “may” and “preference” and the phrase “subject to the approval of the court.” A child, upon obtaining the age of 12, may state who they prefer to live with. The child’s preference is one consideration in a list of many that the court must review. That basically means that the child has a right to request that their preference be considered within the list of things the court must look at when making a determination about which person the child will live with. Before age 12, the court does not have to consider the child’s preference at all.
Another important factor that comes into fruition upon the child obtaining the age of 12 and if parties are modifying a prior order is the requirement of demonstrating to the court that an emergency exists. Before a child is 12, a party seeking to modify a prior order must show the court that some detriment may come to the child if left in their current environment and that a need for temporary orders exists. Once a child reaches the age of 12 and has signed a document evidencing their preference, then the party seeking to have the child live with them may ask for the temporary orders without a showing of harm or detriment to the child. That is a significant difference. Proving that the child is in imminent danger of emotional or physical detriment is a difficult burden. Eliminating that requirement for a child of 12 or older allows the child to have a voice in the process without having to prove some wrongdoing on the part of the household they want to move from.
A petition to modify a prior order such as a final decree of divorce to change the child’s primary residence need only contain the child’s formal written preference. That means that the child does not have to state that the parent or person they want to move from has done anything wrong, but that they merely want to reside with the other parent.
It is not as common for third parties to be involved when a child’s preference for primary residence is an issue. Most of the time, it is the parents that have conservatorship over their child or children, and not a non-parent third party. If, however, a non-parent third party has been appointed as a child’s primary conservator and the child’s preference is to live with their parent or parents, then the process is the same as if the non-parent were a parent. In some cases, a non-parent is appointed as a joint managing conservator with some of the same rights and duties as a parent, such as possession and access to the child. If that person has been granted possessory rights to the child through a court order, and the child’s preference is to live with that person primarily, then that person may file the petition with the court, attaching the child’s written preference to the petition.
The statute is not meant to circumvent a parent’s right to discipline their child. It is not at all unheard of for a child to want to live with the other parent because they believe the “rules” will be less burdensome with the other parent. The court generally appoints an attorney to represent the best interests of the child or children in cases involving the conservatorship (custody) of the child or children. The attorney may be appointed as an attorney ad litem, or as an amicus attorney. In either case, the attorney is trained to represent children and to listen to the child’s wishes in order to report to the court on the child’s state of mind. If a child is mature enough to understand the consequences of their decision and is not merely trying to find the “easiest” place to live, then that attorney may recommend to the court that the child be allowed to move and change their primary residence. Other factors that are considered are the child’s best interest, relationship with each party, relationships with their friends or other family members, connections with their school, church or community and the environments of each household that may have a right to have the child live within it.
A child who is age 12 or older then, may be heard and have their preference considered by a court. The statute does not allow for a child to choose to go live with a friend or other person who has no conservatory rights of the child at all. A child never has the right to prefer to go live with just anyone. The only way for the child’s preference to be heard is for one of the parties who have conservatory rights of the child to file a petition with the court asking for the change. A child does not have the right to simply declare, “I’m 12, I can choose and you have to let me move.” The statute is not automatic, but the issue must be heard before the court, or decided on by the parties by agreement and followed up with the appropriate legal paperwork to make the change. Some parents decide between themselves to allow their child or children to choose which parent they will live with primarily without filing any documents with the court. They may do that for financial reasons due to the cost of entering the legal process or they may do that as a “trial” run, to see if the child adjusts to the change and wants to continue living with the other parent. Many reasons exist to formally change a court’s prior order regarding the child’s primary conservatorship, including child support, medical child support and possession and access issues that would be affected if a child moves away from one parent and in with the other parent. Schools also must have written documentation regarding which parent or person has the authority to make decisions concerning the child’s education. If a child moves to the household of another parent or person without the legal paperwork, then that person may not be able to enroll the child in a different school.
This article is meant for informational purposes and not meant as a substitution for sound legal advice. Please forward any questions to Ask the Lawyer to firstname.lastname@example.org.