One of the most difficult problems parents face when they divorce or break up is deciding who will have custody of their children. All too often, parents can't reach a mutually agreeable decision, which means they need to go to court and ask a judge to make it for them. Parents have the right to speak on their own behalf and to hire lawyers to represent them. But to what extent do children have the same right? When, if at all, does a child's custodial preference matter to a Texas family court?
There are two kinds of custody at stake in any custody proceeding: legal and physical. Legal custody is a parent’s right to help make critical decisions about the child’s life, such as the child’s medical, educational, cultural, and religious upbringing. Physical custody, on the other hand, refers to where the child will live, which parent will provide what kind of care for the child, and how much time each parent will spend with the child.
Legal and physical custody may be joint or sole. If custody is joint, the parents will share time with the child and make decisions together. If custody is sole, only one parent will make the decisions and will spend most, or sometimes all, of the time with the child.
To make an initial custody determination, Texas law requires family law judges to determine the best interests of the child. In the landmark case of Holley v. Adams, 544 S.W.2d 367 (Tex. 1976), the Texas Supreme Court listed the factors judges must consider when determining a child's best interests, including:
This list explicitly includes a child's custodial preference, but doesn't explain how old or mature a child needs to be, or how reasonable and articulate the preference needs to be before the court can consider it.
For more information about custody decisions and family law matters, you can read a guide, entitled "What to Expect in Texas Family Law Court," which was prepared by the Texas Young Lawyers' Association.
Under the factors listed in Holley, Texas family court judges are obligated to consider a child’s custodial preference as one of the best interest factors. However, the case did not elaborate on the circumstances when a judge must give weight to the child's preference.
If one of the parents asks, the court must interview a child of 12 years or older and inquire about the child's wishes regarding custody and where the child wants to live. Alternatively, a child of 12 years or older can file paperwork with the court which identifies and explains the child's custodial preference. Again, however, the child's preference is just one factor among many others.
The court will only consider the child's custodial preference if the child is sufficiently mature. The older the child, the more likely it is that the child can be a good witness and articulately express a well-reasoned, nuanced opinion that’s helpful to the judge. For instance, the court would give heavy weight to a custodial preference if a 16-year-old child testified that he loved both parents very much, but wanted to live with his father because his father's home was more stable and his father actively supports his education. However, if a nine-year-old girl testified that she wanted to live with her father because he lives in a lavish home with a game room, the court would give that preference little to no weight.
Younger children are more likely to want the status quo—to live with both parents. For this reason, and because it can be emotionally damaging to ask young children to choose between their parents, the custodial preferences of younger children generally receive little to no weight.
Similarly, if parents try to bribe, harass, or cajole their children into expressing a particular preference, the court will disregard the children's opinions.
To gather more information about the case, the court may appoint an attorney ad litem, who is an advocate for the children and gathers facts about their lives and best interests.
Children generally don't testify about their custodial preferences in open court, because it would be very traumatic for them. The court interviews them privately. If the family court judge decides to interview a child in chambers, a court reporter has to be present to prepare an official transcript of the interview. This transcript becomes part of the record of the custody proceeding. The judge may, but does not have to, allow the parents' attorneys or the attorney ad litem to attend the interview.
Contested custody proceedings can be very difficult for non-lawyers to understand and navigate. If you and your former spouse or partner can't agree about custody of your children, contact an experienced Texas family law attorney, who can represent your interests in front of a judge and make sure you're moving through the process correctly.