Child custody is a contentious issue in any divorce. One of the more common myths I hear from prospective divorce clients is that their child is over the age of 12 and wants to live with them so custody isn’t an issue.
That simply isn’t true as I will explain below.
A Quick Note On Conservatorship Versus Possession and Access
Let’s take a moment to look at the difference between conservatorship as opposed to possession and access under the Texas Family Code.
In simplest terms, conservatorship refers to decision making authority.
Possession and access refers to having physical possession of the children during defined periods of time. This is more of the traditional understanding of custody.
The Significance Of Your Child Being 12 Years Old In A Divorce
So where does that myth I discussed above come from? It comes from a misunderstanding of what the law says.
The Texas Family Code provides that upon application of a parent, the judge shall interview a child age 12 or older in chambers on the issues of conservatorship or which parent should have the right to determine the child’s primary residence.
The Texas Family Code provides that upon application of a parent, the judge may interview a child under the age of 12 in chambers on the issues of conservatorship or which parent should have the right to determine the child’s primary residence.
The law also provides that upon application of a parent, the judge may interview a child in chambers to determine the child’s wishes on the issues of possession, access, or any other issue affecting the parent-child relationship.
But The Judge Still Decides
The judge will still be the ultimate decision maker on the issues of conservatorship, possession, and access. The legal standard for making that decision is what is in the best interests of the child.
The child’s wishes as expressed to the judge during any interview are merely one factor that the judge can consider in making a decision.
When Will The Child’s Wishes Carry More Weight?
There are a number of circumstances in which the child’s wishes will carry more weight.
For example, an older teenager’s wishes will carry more weight for the simple reason that it is difficult for a court to control the child.
If you tell a 17 year old with a car that he has to live with dad but he wants to live with mom – guess whose house he will end up at regardless of what the court says?
The weight of the child’s wishes will also depend on how well thought out the child’s decision making appears to the judge.
A child stating that he or she wants to live with one parent over the other carries more weight if it is supported by well thought reasoning.
The judge will not simply ask which parent the child wishes to live with but also attempt to explore the reason behind that decision.
This leads to another factor – the child’s wishes will carry less weight if it appears to the judge that they are based on inappropriate influence from one parent or the other.
For example – telling a child that you will let him play video games all day if he tells the judge that he wants to live with you is a bad move.
One More Note Of Caution
Children tend to be a lot smarter than parents give them credit for both intellectually and emotionally.
Children know when a divorce is happening. They see the discord and conflict between parents. They see the emotional toll it takes on mom and dad.
Most of them have friends with divorced parents so they know at some point they will end up living with mom or dad.
It is not uncommon for a child to try to cheer up a parent by telling them that they want to live with them – even while telling the other parent the exact same thing. The child is merely trying to keep their parents happy.
So even if your child assures you that you are the parent they want to live with – be careful asking for them to testify as you do not know what they will say to the judge.
You should evaluate the child custody issues objectively understanding that the child’s opinion is one factor and the the ultimate decision will be based on what is in the child’s best interests.
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