I have been asked this question more times than I can count during my career. More often, it is stated to me as fact, as in “well my child is over twelve, so he/she gets to decide who he/she wants to live with.” This belief is based on a misinterpretation of a very real Texas Family Code statute concerning the wishes of a child twelve or older.
Here is what Texas Family Code Section 153.009 says (edited somewhat for brevity, see actual statute here):
“(a) … 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…
“(b) … 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.
“(c) Interviewing a child does not diminish the discretion of the court in determining the best interests of the child.”
Analysis of the Statute
So what exactly does that mean? Here are the key points as to what the statute says and, just as importantly, what it does not say.
- If a child is 12 or over and a request is made, then the judge is required to interview the child to determine what the child’s wishes are regarding the issues in controversy (custody, visitation schedule, etc.).
- The statute does not give the child any ultimate decision-making authority. It only requires that the court hear from the child as to the child’s wishes.
- The statute specifically says that the court is still required to make a ruling that is in the child’s best interests. While the child’s desire can play a role in that decision is it definitely not the only issue and the court is free to rule however the court feels best serves the child’s interests.
So the Texas Family Code is very clear that while the judge must be made aware of and consider a twelve year old child’s wishes, in no way does the statute give unilateral decision making authority on that issue to the child. Generally speaking, the older the child is the more input their wishes will given and in many custody cases the most significant piece of evidence is the child’s desires. But ultimately the child’s best interest is the standard that the court would apply if it needed to decide the case.