LEGAL RESOURCES
Should My Child Be Involved in Our Court Case?
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In Most Cases, The Answer Is No.
One of the most difficult aspects of a divorce or custody dispute is deciding how much to tell the children. Parents often want their children to understand what is happening, while children frequently ask questions about where they will live or why their parents are separating.
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As a general rule, however, children should not be involved in their parents’ custody litigation.
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Texas courts recognize that custody disputes are emotionally difficult for children. Judges generally expect parents to shield their children from the litigation rather than involve them in it. The courtroom is not a place for children to resolve conflicts between their parents, and parents should avoid placing children in the middle of those disputes whenever possible.
Research Shows That High-Conflict Custody Disputes
Can Harm Children
A substantial body of psychological research has found that it is parental conflict, rather than the divorce itself, that is often associated with poorer outcomes for children. Children exposed to ongoing parental conflict may experience increased anxiety, depression, behavioral problems, academic difficulties, sleep disturbances, and loyalty conflicts. Researchers have consistently observed that children generally fare better when parents reduce conflict and avoid involving them in adult disputes.
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For that reason, mental health professionals, parenting experts, and family courts routinely encourage parents to keep children out of litigation, avoid asking them to choose sides, and allow them to maintain healthy relationships with both parents whenever it is safe to do so.
Children Are Not Expected to Choose Between Their Parents
One of the most harmful situations for a child is feeling responsible for deciding which parent should “win” the custody case.
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Children naturally love both parents. Asking a child to take sides places an emotional burden on the child that he or she should never have to carry.
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Parents should never pressure a child to express a preference, ask the child to report on the other parent’s activities, or attempt to recruit the child into the litigation. Even subtle comments can make children feel responsible for the outcome of the case.
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Texas courts expect parents—not children—to handle legal disputes.
Research Shows That High-Conflict Custody Disputes
Can Harm Children
A substantial body of psychological research has found that it is parental conflict, rather than the divorce itself, that is often associated with poorer outcomes for children. Children exposed to ongoing parental conflict may experience increased anxiety, depression, behavioral problems, academic difficulties, sleep disturbances, and loyalty conflicts. Researchers have consistently observed that children generally fare better when parents reduce conflict and avoid involving them in adult disputes.
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For that reason, mental health professionals, parenting experts, and family courts routinely encourage parents to keep children out of litigation, avoid asking them to choose sides, and allow them to maintain healthy relationships with both parents whenever it is safe to do so.
Children Are Not Expected to Choose Between Their Parents
One of the most harmful situations for a child is feeling responsible for deciding which parent should “win” the custody case.
Children naturally love both parents. Asking a child to take sides places an emotional burden on the child that he or she should never have to carry.
Parents should never pressure a child to express a preference, ask the child to report on the other parent’s activities, or attempt to recruit the child into the litigation. Even subtle comments can make children feel responsible for the outcome of the case.
Texas courts expect parents—not children—to handle legal disputes.
Children Age Twelve and Older May Speak With the Judge
Many parents have heard that a child who reaches the age of twelve gets to decide where he or she will live.
That is not Texas law.
Under Tex. Fam. Code § 153.009, a child who is twelve years of age or older may, under appropriate circumstances, meet privately with the judge to express the child’s wishes regarding conservatorship or the person who should have the exclusive right to determine the child’s primary residence.
The child’s preference is only one factor the court may consider.
The judge is not required to follow the child’s request. The controlling issue in every custody case remains the best interest of the child. A court may determine that living primarily with a different parent better serves the child’s health, safety, emotional development, educational needs, or overall welfare despite the child’s stated preference.
Parents Should Never Coach a Child
A child’s conversation with the court is intended to reflect the child’s own thoughts—not the wishes of either parent.
Attempting to influence what a child tells the judge can seriously undermine the credibility of the parent engaging in that conduct. Courts expect any interview with the child to be free from pressure, coaching, or manipulation.
Encouraging a child to repeat certain statements, criticize the other parent, or advocate for a particular result is rarely viewed favorably by the court.
Do Not Speak Negatively About the Other Parent
Many counties in Texas have standing orders that specifically prohibit parents from making disparaging remarks about the other parent in the presence or within the hearing of the child.
Even when no standing order exists, judges consistently expect parents to encourage positive relationships between the child and the other parent whenever it is safe to do so.
Children should not be exposed to adult disputes, accusations, financial disagreements, or litigation strategy. Statements intended to alienate a child from the other parent often become significant issues during custody litigation.
A parent’s willingness to foster and encourage the child’s relationship with the other parent is frequently an important consideration in determining the child’s best interest.
Never Ask a Child to Hide or Destroy Evidence
Parents should never involve children in gathering, concealing, deleting, or destroying evidence.
Likewise, parents should never ask a child to secretly record conversations, search through the other parent’s belongings, monitor the other parent’s activities, or participate in litigation strategy.
Attempting to involve children in these activities places them directly in the middle of the dispute and may significantly damage the parent’s credibility before the court.
Do Not Bring Your Child to the Courthouse
Parents sometimes believe their child should attend court so the judge can “see what the child wants.”
In most cases, that is a mistake.
Texas courts generally do not want children brought to the courthouse unless the judge has specifically directed that the child be present. Family courthouses are stressful environments, and exposing children to hearings involving their parents is usually contrary to their emotional well-being.
If the court determines that speaking with the child is appropriate, the judge will make arrangements consistent with the Texas Family Code. Parents should not assume that bringing the child to court will help their case.
Involving Children Can Hurt Your Custody Case
Many parents mistakenly believe that encouraging a child to prefer one parent will strengthen their custody case.
In reality, the opposite is often true.
When a court determines that one parent has attempted to manipulate the child, interfere with the child’s relationship with the other parent, or place the child in the middle of the litigation, the court may conclude that the conduct is contrary to the child’s best interest.
In appropriate cases, that type of conduct may influence conservatorship decisions, including which parent receives the exclusive right to designate the child’s primary residence. Because the designation of the primary conservator often affects child support, attempting to involve the child in the dispute can ultimately produce the opposite result from what the favored parent intended.
Judges expect parents to reduce conflict—not increase it.
Children Should Follow the Court-Ordered Possession Schedule
Parents should encourage children to comply with the court-ordered possession schedule, even when a child expresses reluctance or frustration.
A parent should not permit a child to decide whether to comply with a court order simply because the child prefers to stay with one parent on a particular weekend. Allowing children to control the possession schedule often creates instability and may expose the parent to enforcement proceedings.
There are, of course, situations involving a genuine and immediate threat to a child’s health or safety. If a parent believes there is a clear and present danger to the child, protecting the child becomes the immediate priority. However, parents should understand that emergency situations generally require prompt legal action to obtain temporary orders, protective orders, or modifications reflecting the changed circumstances. Unilaterally disregarding an existing court order for an extended period without seeking relief from the court can create significant legal issues.
Fergus & Tomanka Helps Parents Protect Their Children During Litigation
Child custody litigation is difficult enough without placing children in the middle of the dispute. Courts expect parents to shield their children from conflict, comply with court orders, and make decisions that promote their children’s long-term emotional and physical well-being.
At Fergus & Tomanka, we help parents navigate custody disputes while keeping the focus where it belongs—on the best interests of the child. Whether your case involves conservatorship, possession, modification, enforcement, allegations of parental alienation, or concerns regarding a child’s safety, we can help you develop a strategy that protects both your legal rights and your child’s well-being.
Call (512) 291-6952 to setup a consultation with one of our attorneys OR simply Make An Appointment on your own!
These issues can be quite difficult to handle on your own due to the legal complexity and emotionally-charged nature of the proceedings. It’s best to consult with an experienced family law attorney in your area.