The Myth Behind 12 year olds and Custody in Texas
Probably the most misunderstood part of the Texas Family Code is the provision where a judge can speak to a child, 12 years or older, and what implications that brings. The commonly held misperception is that a 12 year old or older child gets to decide with which parent they reside. Some people believe that children of this age get to decide if/when they see the other parent. Both of these beliefs are categorically wrong.
Section 153.009 of the Texas Family Code states, “(a) In a nonjury trial or at a hearing, on the application of a party, the amicus attorney, or the attorney ad litem for the child, the court shall interview in chambers a child 12 years of age or older and may interview in chambers a child under 12 years of age to determine the child’s wishes as to conservatorship or as to the person who shall have the exclusive right to determine the child’s primary residence. The court may also interview a child in chambers on the court’s own motion for a purpose specified by this subsection.” Nowhere in that section does it force the judge to grant the child’s wishes. The judge is required to speak to the children, but is not required at all to act on it.
Section 156.006(b)(3) of the Texas Family Code provides a ground to change primary at temporary orders by stating “(3) the child is 12 years of age or older and has expressed to the court in chambers as provided by Section 153.009 the name of the person who is the child’s preference to have the exclusive right to designate the primary residence of the child.” Again, the section in no way forces the court to abide by the child’s wishes.
This policy makes absolute sense. First, children want to please their parents. Very often, children will tell both parents what they want to hear. Imagine a parent asking a child, ‘Which parent would you rather live with?” It should be no surprise the child may tell both parents the same thing. Second, children change their minds frequently. They change tastes, desires, who their angry at, hobbies, friends even more frequently than adults. If a court were forced to change custody every time a 12 year old changed their mind, imagine the headaches that would cause.
Third, children are easily manipulated. It’s sadly not uncommon for parents to bribe their children with toys, trips, cars, games, freedom and anything they can think of to convince the child to leave the other parent for them. I had a case where the father continually promised his 16 year old to let him be a go cart racing driver if he lived with him. We had an amicus attorney who helped the Judge see right through it, but the 16 year old told the judge he preferred to be with the father.
If you’re about to be in a custody case involving older children, do not solely rely on the children’s desires to live with you as a determining factor. I highly recommend focusing more on best interest factors such as ability to meet the children’s needs, work schedules, involvement with the children, and your overall relationship with the children. Again, it’s not surprising that children would want to go live with the ‘more fun’ parent who grants them more freedom. Judges are wise to this and often don’t give the children’s desires much credence. I’ve had some judges literally say on the bench, ‘no child is going to tell me what to do or where they’re going to live.’ While I obviously am troubled by this attitude, it should put the idea in perspective about how much I really matters where the children ‘want to live.’ Is it important? Absolutely. Will it win your case on its own? Probably not.
