Texas child custody cases--when is a child old enough to choose?

I decided to write this blog due to a number of Texas child custody cases I've handled recently that involved a child making a choice.  In Texas, a child 12 years of age or older can sign a written statement indicating the person with whom the child prefers to live.  The kicker, of course, is that the choice has to be approved by the Court (meaning a judge).  Child custody lawyers in Texas (as well as parents) are often faced with difficult cases and choices when these issues come up.

In most cases, both parents usually end up agreeing to let the child live where the child wants to live.  In a significant number of cases, however, the parent with original custody of the child opposes the child's choice.  For instance, sometimes the original custodial parent believes the child is making the choice to live with the other parent for the wrong reasons--the other parent is much less of a disciplinarian, or "bribes" the child with promises of gifts, etc.  In many cases, the child, whose visits with the non-custodial parent are usually brief but full of fun, has a false impression of what life will be like with that other parent.  Unfortunately, in other cases, the reason the custodial parent opposes the change is financial--he or she doesn't want to lose that child support he or she has been receiving, and especially doesn't want to have to start paying child support. 

In most cases, however, the child simply wants to try living with the other parent.  Depending on the age of the child, I often advise people in these situations to agree on a temporary change of custody to see how it works out.  In some instances, the child will change his or her mind after a few months of reality with the other parent.  In other cases, the time with the other parent solidifies the child's choice.

In any case, if a child makes the choice to sign a statement saying that he or she wants to live with the other parent, a petition to modify the original custody order will have to be filed.  Then, an order can either be entered by agreement, or the parties can go through a full-blown custody trial.

J. Michael Clay is a San Antonio, Texas lawyer whose practice focuses on family law issues, such as divorce, adoption, child custody, child support, modification, enforcement and other family-law issues.

J. Michael Clay is licensed to practice law in all Texas state courts, and in federal courts in the Western District of Texas.

Not certified by the Texas Board of Legal Specialization in any particular area.