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Can Older Children in Divorce Pick Which Parent to Live With?

This article was written by Hance Law Group associate attorney Jonathan James.

Recently, some clients have asked me about an oft-misunderstood element of the Texas Family Code. They believe that once a child turns 12 years old, he or she can select which parent to live with, and that’s not quite the case. When a child in Texas turns 12, he or she can (with a parent advocating for the child) initiate a process that asks a judge to rule on who should be the primary parent. But to say that the child can pick which parent to live with is an oversimplification that deserves some clarification.

The Texas Family Code allows a child whose parents divorce to interview with a judge, discussing which parent the child would like to be the primary parent with respect to parenting time—what is sometimes defined as the custodial parent.

The way the law is written, a child 12 or over shall get an audience with the judge when a parent requests it, whereas a child under 12 whose parent requests it may get a similar audience with the judge.

The first thing that’s important to know in this situation is that the judge rules on primary custody, and not sole custody. Provided that a parent isn’t being abusive or doing anything to call parental rights into question, both parents will still be granted parenting time in whatever ruling the judge makes.

It’s also important to know that the judge will still make a final determination based on what he or she believes to be best for the child. The child might provide information in the interview that the judge will use in determining each parent’s status, but the judge can certainly rule against the child’s wish to change the status quo.

My experience is that judges are not particularly eager to be involved in these interviews. Some will follow a specific script, while others might just ask the child about the weather or other innocuous topics. The law doesn’t make any specific requirements as to what the judge can ask or not ask; it’s up to the individual judge’s discretion.

While a lawyer for one of the parents can request both lawyers of the parents to be present at the interview, this is generally not encouraged and based on the excellent advice I’ve received from past and present mentors, it’s not something I’d normally want to do (except in very unique circumstances). Similarly, a lawyer can request that a court reporter be present to record the interview, but this is also not encouraged by family lawyers experienced enough to have been involved with these kinds of cases.

Some of the interviews might actually reveal sound, logistical reasons that custodial status should be switched—perhaps a high school student wants to be closer to school for sports or other activities, and Dad lives closer to the school than Mom. But it could be a situation in which Dad isn’t as strict about a boyfriend staying over as Mom is, to which a judge might rightly say, “This isn’t what I’m here to do.”

I know of one Collin County judge who keeps a “magic wand” in his office for just these kinds of interviews. He will ask the child if he or she could be granted one wish, what that would be. Nine times of ten, the child responds, “I want my parents to stop fighting!”

As children get older and become more independent, it’s important for them to advocate for themselves, but I think that parenting time issues work best when parents can negotiate them—with children’s insights and input integrated into the final decision—without a judge stepping in.

While some situations ultimately require a judge’s involvement, you should remember that a judge will rule according to what he or she thinks is best for your children (based on the evidence presented to that judge), and you should never agree to something in a divorce decree thinking that a judge will change it in your favor. And you should never agree to a custody agreement with the idea that your child will be able to independently change it with your encouragement later because that simply isn’t true.