Within the area of family law, there is no issue more emotional or potentially contentious than the issue of child custody. Whether the issue comes up during a divorce or paternity action, or is revisited at a later date, a custody battle typically has a significant, and often lasting, impact on everyone involved – particularly the child. Given the impact a custody battle does have on a child you might think a child would have considerable input regarding the decision reached by the court; however, that is not always the case. In fact, input by a child in a custody case tends to be the exception, not the rule. A Fort Worth child custody lawyer explains when a child’s wishes are considered and how the court handled the testimony of a minor.
In the State of Texas, terms such as “custody” and “visitation” are not used in the law. Instead, the term “conservatorship” is used to refer to the parent(s) who has the legal right to make important decisions affecting the child, such as where the child will attend school or what medical treatment. The term “possession and access” is then used to refer to when the child will enjoy parenting time with a parent. Although the terminology is different, the basic concepts remain the same. One parent will typically be designated as the parent with whom the child lives the majority of the time while the other parent will have the child according to the possession and access schedule ordered by the court.
If the parents were married at the time the child was born, and later decide to divorce, both conservatorship and possession and access will be determined during the divorce proceedings. If the child was born out of wedlock, the mother automatically has conservatorship of the child. In that case, possession and access will be determined during a court action for the establishment of paternity. In either case, it is possible for a parent to petition the court for a modification down the road if the parent wishes to change either conservatorship of the child or the possession and access schedule.
The wishes of a minor child in a child custody case create a difficult conundrum for the court. On the one hand, given the fact that the outcome of the litigation will directly and dramatically impact the child, it only seems fair and just to take the child’s wishes into consideration. On the other hand, allowing a child to become involved, much less testify, puts the child directly in the middle of the conflict between the parents. It also potentially makes the child a target of efforts on the part of a parent to sway the child’s testimony.
In the State of Texas, the Texas Family Code Sec. 153.009 governs when and how a minor child’s wishes may be considered. According to that section, a judge may interview a child who is 12 years of age or older in the judge’s chambers to ascertain what the child’s wishes are with regard to 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 parents are not allowed in the judge’s chambers during the interview with the child; however, the attorney for the parent may be present if the judge so allows. Of particular importance to the judge will likely be why the child wants to live with the chosen parent. The judge will try and determine if the wishes of the child are the child’s own wishes (and not influenced by a parent) and if those wishes are based on solid, practical reasons or just the child’s whim. Because a judge is required to make all decisions relating to a minor child using the “best interest of the child” standard, the judge may place as much, or as little, weight on the child’s wishes as the judge deems appropriate.
Although most custody cases do not end up in a jury trial, if that does happen, there is a chance that the child would actually have to testify because in a jury trial the jury makes the decision, not the judge. Finally, if the child in question is under the age of 12, it is up to the judge whether the child is interviewed in chambers or not if the parent requests that the child’s wishes be considered.
If you have additional questions or concerns about a child’s wishes in a custody case, contact an experienced Fort Worth Child Custody Lawyer at The Law Office of Jon R. Boyd to schedule your appointment today.