At What Age Can A Child Make A Custody Decision?

There are people that mistakenly assume that when a child is 12 years old, the child can choose which parent to stay with after a divorce. This is an urban myth that must be debunked. The truth is that in Texas, a child cannot decide which parent shall have custody.  What usually happens is that a child that is age 12 and above is given a chance to have a say in where they will live.

Legal Age For Child To Choose Custody

The judge does not have to follow the child’s wishes. The judge merely interviews the child to determine the child’s wishes because Texas Law requires the child to be interviewed.  The judge has discretion in how the child is interviewed and conducts the interview in the judge’s private office or “in chambers”. The judge only conducts the interview in bench trials when a child is 12 years or older.  The interview can also be conducted on a motion by one of the parties, the amicus, or on the court’s own motion.

TX Family Code 153.009

Interview of Child In Chambers

Texas Family Code 153.009 discusses the Judge’s interview.

If there is an issue of conservatorship, the court may use a motion to interview the child in chambers.  The court may also discuss with the child about the child’s desires with regard to residency and primary conservatorship.  Other issues involved in the custody suit are also discussed. The interview has to be conducted if the child is 12 years old or older. However, if the child is under 12 years the interview is discretionary with the court.

The court may allow the attorney representing the child or the child’s guardian to be present during the interview.  Attorneys for the parties may also be allowed to attend the interview. However, the court is not required to allow either the amicus attorney, or the guardian, or the parties’ attorneys to be present during the interview.  However, any of the parties to the suit may request the court to make a record of the interview. The court usually makes records by allowing a court reporter to transcribe the interview with the child in the chambers.

Who Gets Custody?

What many courts in other states call custody is actually called conservatorship in Texas. The terms are similar but cannot always be used interchangeably.  The parent who receives child support also gets to decide where the child lives is called a primary conservator. To decide who among the two parties in the suit will become primary conservator, the court considers the following:

  • The child’s physical, emotional and health needs
  • Living situations of the parent
  • Financial situation of the parents
  • The state of the parents’ health
  • History of abuse or negligence in the family
  • The relationship between the parents

After the court has made a decision on who will be the primary conservator, either of the parents can still petition the court for a modification should there be substantial change in circumstances.