“Son, when you turn 12 you get to choose to come live with me.”
I get some variation of this statement almost every week. Someone comes to the office either asking when their child can choose to live with them or furious that the other parent is doing everything in his or her power to get the child to utter the magic words – “I want to live with you.” It’s just not that simple.
It is a common misconception that a child of any age gets to “choose” which parent they want to live with. The law says that a child age 12 or over may express his wishes or preference regarding the person to have the exclusive right to designate the primary residence of the child. In other words, to tell the judge which parent he want to live with. This is only one factor in the determination to be made by the judge. The judge is free to entirely disregard the child’s wishes, if the judge chooses to do so. Regardless of what wish or preference may be expressed by the child, the primary issue will always be the child’s best interest.
Prior to 2009, the Family Code permitted a child age 12 or older to sign an affidavit expressing the child’s preference in writing. That code section was repealed and replaced with a provision that the court shall interview the child in chambers if the child is 12 years old or older and may interview a child under 12 regarding 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 can also 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. There is similar provision that applies to modifications of conservatorship orders.
Judges differ tremendously on how they navigate these laws. If you read the relevant code sections, you will notice that none of them actually tell the judge when to interview the child. Some judges will do it right at the start, some will delay it until the very end of the case. Judges also vary widely on the weight they give to the child’s preference. All judges will consider other factors such as the child’s age, level of maturity and whether the judge believes the child has been “coached” or otherwise persuaded to express a particular choice. Some judges absolutely hate interviewing kids. Others absolutely hate the child being put in this spot by the parent. Some judges are good at talking with kids, others not so much. Always keep in mind that this really isn’t the child’s choice at all – it’s a factor in the judge’s decision.
Obviously, the older the child, the more weight will be given to his or her wishes. There’s a big difference between a 12 year old and a 17 year old (usually). But always keep in mind, the child’s wishes alone are never the sole deciding factor in conservatorship.
When I was a judge I interviewed many children. As you can imagine, those interviews were all over the place in terms of what the kids had to say and how they said it. Some interviews were very helpful to me and some were not. In most, the child expressed in some fashion that he or she really loved both parents and just wanted to spend time with each of them without arguing. I think that’s a fair statement of what most kids want.