The Myth Behind 12 year olds and Custody in Texas

The Myth Behind 12-Year-Olds and Custody in Texas

One of the most misunderstood parts of the Texas Family Code is the rule about judges speaking to children age 12 and older. Many parents believe a 12-year-old can choose which parent to live with. Some even think the child can decide if and when to see the other parent. Both beliefs are wrong.

Section 153.009 of the Texas Family Code states that in a nonjury trial or hearing, the court must interview in chambers a child who is 12 or older if requested by a party, an amicus attorney, or an attorney ad litem. The judge may also choose to interview a younger child. The interview lets the child express wishes about conservatorship or which parent should decide the child’s primary residence. But nowhere does the law say the judge must follow those wishes. The judge must listen, but the judge does not have to act on it.

Section 156.006(b)(3) allows a court to consider a child’s wishes at temporary orders if the child is 12 or older. Even then, the law does not require the court to follow the child’s preference.

This policy makes sense for several reasons. First, children want to please their parents. In custody disputes, many children tell each parent exactly what they want to hear. Second, children change their minds frequently—about friends, hobbies, interests, even which parent they’re angry at. If courts had to switch custody every time a child changed their mind, the system would collapse. Third, children are easily manipulated. Some parents bribe them with gifts, trips, cars, or freedoms. I once handled a case where a father promised his 16-year-old he could become a go-kart racing driver if he lived with him. The judge, with help from an amicus attorney, saw through it—even though the child said he preferred his father.

These examples show why courts treat a child’s wishes carefully. Judges know the pitfalls. In fact, I’ve heard judges say in court, “No child is going to tell me what to do or where they’re going to live.”

If you’re heading into a custody case with an older child, don’t rely solely on the child’s stated preference. Focus instead on the best interest factors:

• Your ability to meet the child’s needs.

• Your work schedule and stability.

• Your history of involvement with the child.

• Your overall relationship with the child.

Yes, a child’s preference matters. But it will not win your case alone. Judges look for evidence of stability, responsibility, and care—not just which parent seems more fun.