Do the Child’s Wishes Matter in A Custody Battle?
Dec. 29, 2021
Making the decision to end a marriage is rarely easy. The divorce process that follows that decision can be amicable or acrimonious, depending on how the parties choose to proceed. When custody of a minor child is contested, however, the divorce process becomes extremely contentious and adversarial. Both parents are convinced that the child is better off with them. What about how the child feels though? Do the child’s wishes matter in a custody battle? A Texas child custody lawyer from The Law Office of Jon R. Boyd answers that question.
Conservatorship of A Minor Child in Texas
First, it is important to understand some relevant terminology and law. In the State of Texas, the terms “custody” and “visitation” are not used in the law. Instead, the term “conservatorship” is used to refer to a parent’s legal rights and duties toward a minor child and the term “possession and access” is used when referring to the time a child spends with a parent. A parent can have jointing managing conservatorship over a child, meaning both parents share the right to make decisions about the child, or sole managing conservatorship, meaning only one parent has the right to make decisions.
Ideally, the parents of a minor child are able to reach an amicable agreement relating to conservatorship of a minor child during a divorce. That agreement is then reduced to writing within the Parenting Plan, required by the court, and ultimately approved by the judge. When the parents are unable to reach an agreement regarding conservatorship, the court must decide. All decision made that relate to a minor child must be made using the “best interest of the child” standard. Furthermore, Section 153.131(b) of the Texas Family Code creates a rebuttable presumption in favor of joint managing conservatorship, stating as follows:
It is a rebuttable presumption that the appointment of the parents of a child as joint managing conservators is in the best interest of the child. A finding of a history of family violence involving the parents of a child removes the presumption under this subsection.
Section 153.003 of the Texas Family Code also makes it clear that no presumption in favor of the mother exists, stating, in pertinent part “The court shall consider the qualifications of the parties without regard to their marital status or to the sex of the party or the child…”
Do a Child’s Wishes Matter?
Divorce has a profound, and lasting, impact on everyone involved, including the children of the marriage. When both parents want custody of a minor child, it can put the child in a very difficult situation, often forcing a child to choose one parent over the other. Because the law understands this, Section 153.009 of the Family Code addresses when a child’s testimony is allowed and how that testimony is elicited, reading as follows:
In a nonjury trial or at a hearing, on the application of a party, the amicus attorney, or the attorney ad litem for the child, the court shall interview in chambers a child 12 years of age or older and may interview in chambers a child under 12 years of age to determine the child’s wishes as to conservatorship or as to the person who shall have the exclusive right to determine the child’s primary residence. The court may also interview a child in chambers on the court’s own motion for a purpose specified by this subsection.
In a nonjury trial or at a hearing, on the application of a party, the amicus attorney, or the attorney ad litem for the child or on the court’s own motion, the court may interview the child in chambers to determine the child’s wishes as to possession, access, or any other issue in the suit affecting the parent-child relationship.
Interviewing a child does not diminish the discretion of the court in determining the best interests of the child.
In a jury trial, the court may not interview the child in chambers regarding an issue on which a party is entitled to a jury verdict.
In any trial or hearing, the court may permit the attorney for a party, the amicus attorney, the guardian ad litem for the child, or the attorney ad litem for the child to be present at the interview.
On the motion of a party, the amicus attorney, or the attorney ad litem for the child, or on the court’s own motion, the court shall cause a record of the interview to be made when the child is 12 years of age or older. A record of the interview shall be part of the record in the case.
What the statute says, effectively is that if the child is 12 years of age or older the court must allow the child to testify and if the child is under 12 years of age the court may allow the child’s testimony. Further, that unless the decision is being made at a jury trial, the child’s testimony may be given in chambers instead of in open court.
Contact a Texas Child Custody Lawyer
If you have additional questions or concerns about your child’s wishes with regard to sole managing conservatorship, or any other divorce related questions, contact an experienced child custody lawyer at The Law Office of Jon R. Boyd to schedule your appointment today.