Can Children Express Preference in Texas Custody Proceedings?

If you and your ex are heading into a custody battle, there’s a lot to consider, including whether a court will consider your child’s preference.

By , Retired Judge
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Overview of Custody in Texas

Texas law specifically states that, when it comes to the parent-child relationship, its public policy is to:

  • assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child
  • provide a safe, stable, and nonviolent environment for the child, and
  • encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage. (Tex. Fam. Code – Ch. 153 §153.001.)

With that in mind, when parents are separated or getting divorced, Texas law has opted to replace the terms "custody" as too many negative connotations have become associated with the word over time, making it feel like custody battles are a winner-take-all game.

Today, Texas uses the term "conservatorship" to refer to a parent's role in making critical decisions affecting a child's life, such as medical care, educational decisions, and religious upbringing. Also gone are the terms "legal custody" and "physical custody," replaced with "managing conservatorship" and "possessory conservatorship."

"Managing conservatorship" refers to a parent's role in making critical decisions about the child's life, such as the child's medical, educational, cultural, and religious upbringing. "Possessory conservatorship" encompasses where the child will reside at any particular time, and when a parent will have access to the child (visitation).

In keeping with the goal of having both parents actively involved in the child's upbringing, under Texas law there's a presumption that the parents should have "joint" managing conservatorship. (Tex. Fam. Code – Ch. 153 §153.131 (b).)

In other words, both parents have input in the major decisions regarding the child's life. If the court believes joint managing conservatorship isn't in the child's best interest, it can appoint one parent as the "sole" managing conservator. You might see this in situations where one of the parent's decision-making ability is compromised, such as by untreated substance abuse, or where there's a history of child abuse or domestic violence.

Regarding possessory conservatorship, the law gives parents considerable leeway in setting the terms of when the child will stay with each of them, and when the parent with whom the child isn't residing will have access to the child. (Tex. Fam. Code – Ch. 153 §153.311.)

However, if they can't agree on a schedule, the statute provides a "standard possession order," which lays out in detail the times when each parent will spend with the child. The specifics of the order vary depending on how far apart from each other the parents reside. Additionally, the standard possession order doesn't necessarily apply to children under the age of three. (Tex. Fam. Code – Ch. 153 §153.254.)

Be advised that the courts take conservatorship and access time orders very seriously. A parent's wrongful denial of access to a child can result in serious consequences for that parent.

The Significance of "The Best Interest of the Child"

The previous section made reference to the phrase "the best interests of the child". Texas law specifically states that the best interest of the child must be the court's primary consideration in determining issues of conservatorship and possession of and access to the child. (Tex. Fam. Code – Ch. 153 §153.002.)

To assist judges in making that determination, the Texas Supreme Court, in the case of Holley v. Adams, 544 S.W.2d 367 (Tex. 1976), provided a list of factors for judges to consider. These include:

  • the child's desires
  • the child's immediate and future physical and emotional needs
  • any immediate and future physical and emotional danger to the child
  • the parental abilities of each parent
  • the programs available to assist parents who want to promote the best interests of their child
  • the plans each parent has for the child
  • the stability of the home or proposed home
  • any actions or failures to act that may indicate that the parents don't have a proper parent-child relationship, and
  • any excuse the parents may have for those actions and failures to act.

Will the Court Consider a Child's Preferences?

Yes, if the circumstances warrant it. Notice that the first factor in the "best interests" list above is "the child's desires" .The Texas statutes provide some guidance as to how a judge should approach this. Texas Family Code – Chapter 153, section 153.009 states that if a parent, or an attorney appointed by the court to specifically represent the children's interest, requests that the judge interview a child 12 or older, the judge must do so. For a child under the age of 12, the statute leaves it up to the judge to decide whether to speak with the child.

The judge will conduct a child interview in chambers (meaning in the judge's office). A judge will usually permit the parents' attorneys, and any attorney representing the children, to be present for the interview. If the child is 12 or older, a court reporter will make a transcript of the interview if the attorneys request it, or if the court decides to order it on its own.

The fact that judges interview children doesn't mean they have to adopt the children's wishes as the basis of a custody decision. The reality is that the court will assess a child's maturity level and ability to make a sound, well-reasoned judgment. The older the child, the greater the weight the court will likely give that child's preference.

A judge will also try to ascertain whether a child's expressed preference is based on a parent's undue influence. So a court is likely to discount a child's wishes if it determines that one parent was constantly disparaging the other in front of the child, or if it appears a parent attempted to buy-off the child, such as with promises of gifts.

When it comes to a child's preference, the court will base any decision on "the best interest of the child" standard.

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

Children can make that decision only when they're no longer considered minors, which ordinarily means they've reached the age of 18. This rule also applies to whether a child can refuse visitation (access time) with a parent. Before that age, the ultimate determination of whom to live or spend time with rests with the parents (if they can agree) or the court.

A question may arise as to whether a 16-year-old can choose which parent to live with in Texas. There's an exception to the rule that a child must be 18 years old. That exception exists when a court declares a child to be "emancipated," (In Texas, emancipation is formally known as "removal of disabilities of minority.") If emancipated, children will have the same rights as if they were 18.

Under Texas law, the court can grant emancipation if the minor is:

  • a resident of Texas
  • 17 years of age, or at least 16 years of age and living separate and apart from the minor's parents, managing conservator, or guardian, and
  • self-supporting and managing the minor's own financial affairs. (Tex. Fam. Code – Ch. 31 §31.001.)
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