Can my child choose where they want to live?

This question comes up a lot in Change of Custodyor Divorce cases, not just in in Austin Divorce cases and Georgetown Divorce cases, but also in many Texas Divorce and custody cases.  The Texas Family Code, Section 153.009 is the law dealing with this question.
Many children express a desire to live with one particular parent over the other.  This is common during the divorce process as well as down the line after the divorce has been completed for some time.
The old law used to allow a child over the age of 12 to sign a waiver designating which parent they wanted to live with.  The law was recently changed to allow the Judge to interview the child in chambers to take their opinion in to account.  This is only available where you have asked for the Judge to make a final decision in your case.  If you have asked for a jury trial this interview is not an option.
If your child is over 12 years old then the court shall interview them upon application.  However, if your child is less than 12 years old then it’s up to the Judge as to whether they want to interview your child.
In order for your child to speak to the Judge a request should be made with the Court.  Any parent may make the request, but it is strongly advisable to file the request and then speak to the Judge to setup a time for the child to come meet with the Judge.  The Judge is free to discuss issues regarding possession, access, and any other issues affecting the parent-child relationship.  Do not bring your child to the courthouse when you are filing the application and expect to immediately be seen by the Judge.  The attorneys can be present during the interview, at the discretion of the Judge.  However, if you request that a record of the interview be made by the court reporter, then it must be made and be included as part of the case record.
Keep in mind that the Judge is not required to follow the child’s wishes, if they determine it is not in their best interests.

 

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