Yes, But Not in the Way Most Parents Imagine

One of the most common misconceptions in Texas child custody cases is that a child who reaches a certain age gets to decide where he or she will live.

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That is not the law in Texas.

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A child does not become the decision-maker simply because he or she has reached a particular age. Instead, the court may allow a child to express his or her wishes under limited circumstances, but the judge—not the child—ultimately decides conservatorship, possession, and the right to designate the child’s primary residence.

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Every custody case is governed by one overriding principle: the best interest of the child.

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Texas Law Allows Certain Children to Meet With the Judge

Texas Family Code § 153.009 authorizes the court to interview a child regarding conservatorship and possession.

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If a child is twelve years of age or older, the court shall interview the child in chambers upon the timely request of a party regarding the child’s wishes as to the person who should have the exclusive right to designate the child’s primary residence. The interview generally occurs in the judge’s chambers rather than in open court.

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For children under the age of twelve, the court may also conduct an interview if the judge determines that doing so would assist in deciding issues involving conservatorship or possession.

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The purpose of the interview is to gather information from the child—not to transfer the decision-making authority from the court to the child.

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The Child Does Not Decide the Case

Parents are often surprised to learn that the child’s preference is only one factor the court may consider.

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Even if a fourteen-year-old clearly expresses a desire to live primarily with one parent, the judge is not required to grant that request.

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The court must still determine what arrangement serves the child’s best interest after considering all of the evidence presented during the case. The child’s wishes may be entitled to varying degrees of weight depending upon the child’s maturity, reasoning, and the facts surrounding the case, but they are never controlling.

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A judge may ultimately conclude that a different arrangement better protects the child’s emotional development, educational stability, physical safety, or long-term welfare.

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What Does the Judge Ask?

Every judge conducts these interviews differently.

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The discussion generally focuses on the child’s daily life, relationships with each parent, school, activities, routines, and overall well-being. Depending upon the circumstances, the judge may ask about the child’s preferences, but the interview is not intended to resemble a courtroom examination or cross-examination.

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Judges are often attempting to understand how the child is functioning within each household rather than simply asking which parent the child prefers.

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The conversation is usually informal and conducted in a setting designed to make the child more comfortable than a traditional courtroom.

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Parents Should Never Coach a Child

One of the most damaging mistakes a parent can make is attempting to influence what the child tells the judge.

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Children should never be instructed regarding what to say, what not to say, or how to answer the judge’s questions. Likewise, parents should not rehearse testimony, provide scripts, or suggest answers that the child should give during the interview.

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Experienced judges conduct these interviews regularly and are often able to recognize when a child’s statements appear rehearsed or influenced by a parent.

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A child’s interview should reflect the child’s own thoughts and experiences rather than the litigation strategy of either parent.

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Children Should Not Be Involved in the Litigation

Although Texas law permits certain children to speak with the judge, that does not mean children should become participants in the lawsuit.

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Parents should avoid discussing litigation strategy, showing children court pleadings, asking them to choose sides, reading attorney correspondence to them, or involving them in disputes over child support or property division.

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Research consistently shows that prolonged parental conflict is associated with poorer emotional outcomes for children. Courts therefore expect parents to shield children from litigation whenever possible rather than placing them in the middle of adult disputes.

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Children Should Not Be Brought to the Courthouse Unless Directed by the Court

Parents sometimes assume they should bring their child to every hearing in case the judge wants to speak with the child.

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That is generally not advisable.

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Most courts do not want children waiting in the courthouse during contested custody hearings unless the judge has specifically ordered the child’s presence. Family courts recognize that exposing children to litigation between their parents may create unnecessary stress and anxiety.

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If the judge decides that an interview is appropriate under Section 153.009, the court will generally make arrangements for the interview at the appropriate time.

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The Court Considers Much More Than the Child’s Preference

When determining conservatorship, the court considers numerous factors in addition to the child’s wishes.

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The judge evaluates each parent’s ability to provide for the child’s physical and emotional needs, the history of caregiving, the stability of each home, each parent’s willingness to foster the child’s relationship with the other parent, any evidence of family violence or abuse, educational issues, medical concerns, and all other evidence relevant to the child’s best interest.

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A child’s preference becomes one piece of a much larger analysis.

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Fergus & Tomanka Helps Parents Navigate Custody Cases

A child’s interview with the court can be an important part of a custody case, but it is only one aspect of the evidence the judge will consider. Understanding when a child may be interviewed, how those interviews occur, and how they fit into the overall custody determination can help parents avoid common mistakes during litigation.

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At Fergus & Tomanka, we represent parents throughout Central Texas in divorce, child custody, modification, and enforcement proceedings. We help our clients prepare their cases with a focus on credible evidence, the Texas Family Code, and the child’s best interests while protecting children from unnecessary involvement in the litigation process.