The rules governing the care and welfare of children after a divorce can be complex and particularly difficult for the caregivers. When there are disputes, especially when there are teenagers involved, it is not uncommon for a child to want to express their desire to live with one parent over the other.
Unfortunately, many people think that children who are 12 years and older have the final say about where they will live. The Texas Family Code has a section that addresses the question of whether a child can choose which parent to live with.
The new statute, Section §153.009, repealed the old law in 2010. The difference is in how the child’s preference was presented to the judge. Under the old law, the preference was submitted in writing. The new statute allows the child to express their preference in person during an interview with the judge.
Regardless of what the child wants, the judge will base their decision about the child’s living arrangements on what is in the best interest of the child. The court considers the evidence from others involved in a case so that the children are not made pawns.
Factors That Determine the Child’s Residence
The child’s choice is not the sole factor in determining where they live. When they are 12 years and older, the court can discover the child’s wishes during an interview. Parents are not allowed to be present, and the court is not required to allow the attorneys from either side to be present during the interview.
Generally, the judge asks questions about the child’s desire for residency and visitation and gets their perspective on other issues that have been brought up in the case. The judge then considers the following factors when making their decision:
- The age of the children
- The parent’s wishes
- The parent’s relationship with the children
- Communication between the parents on child-related issues
- Opinion of the child’s therapist and teachers
- Opinion of the neighbors and friends
- Opinion of other family members
- The relationship between the parents and between the children and the parents
- Mental and physical health of the children
- Willingness of each parent to facilitate a relationship with the other parent
- The parent’s participation in childcare activities such as sports, education, and medical appointments
- Distance between parent’s homes
- Parent’s work schedule and living accommodations
- Evidence of domestic violence, abuse, neglect, substance abuse, criminal activity, or mental health concerns in either parent
Types of Conservatorship
Texas law has replaced the term “custody” with “conservatorship” to refer to the role of the primary caregiver who makes critical decisions regarding the child’s life. These critical child-rearing decisions include medical care, religious upbringing, and education.
The law has also replaced “legal custody” and “physical custody” with “managing conservatorship” and “possessory conservatorship.” Managing conservatorship identifies the caregiver who has the responsibility for making critical decisions, such as educational, medical, and religious upbringing.
Possessory conservatorship identifies the parental home where the child lives the majority of the time. The goal is to have both parents actively involved and raising the child. This means that in Texas, the presumption is “joint managing conservatorship” unless this is not in the best interest of the child.
However, joint conservatorship does not mean the child will spend equal time with each parent. If there are issues of abuse or violence, the court can determine it is in the best interest of the child to grant sole managing conservatorship to one parent.
When caregivers cannot agree on where the child lives and who will have access for visitation, the court can order a “standard possession order.” This lays out in detail where the child spends their time and when with each parent.
When the child is 12 years and older, one or both parents can petition the court for the child to express their opinion to the judge and have a voice in where they live. However, the judge will use the best interest of the child as a benchmark to make the decision. Factors they may consider include:
- Immediate physical and emotional needs
- Physical or emotional danger
- Parental abilities
- Parental plans for the child
- Stability of the home environment
- Actions or failure to act that indicate an improper parent-child relationship
- Excuses the parents have for those actions
Contact Higdon, Hardy & Zuflacht, L.L.P. Today
Managing child custody issues during and after a divorce is challenging and often emotionally draining. The compassionate and experienced legal San Antonio child custody attorneys of Higdon, Hardy & Zuflacht, L.L.P. understand the issues you are facing and are ready to help you fight to protect your rights.
While only one percent of all Texas lawyers are board-certified, all of the partners at our firm are Board-Certified in Family Law. Our attorneys are dedicated to helping families resolve disputes by using our knowledge and experience to secure your future and your family’s future.