Yes and no. On the one hand, §153.008 of The Texas Family Code allows children to voice their preferences regarding child custody. However, this preference is simply evidence; a judge can still choose to give primary physical custody to the other parent.
What The Texas Family Code Says
Before §153.009 of The Texas Family Code, §153.008 allowed children (12 years and older) to submit their preference to the court in writing. The judge would then take the written preference as evidence and determine where the child should live based on his or her best interests. If the child’s choice had a significant bearing on his or her best interest, the judge might place the child with the parent he or she requested.
In some cases though, both parents would convince the child to submit written evidence, somewhat defeating the purpose of submitting a preference in the first place. In 2010, §153.008 was repealed and replaced by §153.009. Under §153.009, a child who is 12 years old or older can speak with the judge in person, eliminating the possibility of conflicting evidence. In most cases, one or both of the parents submits a request for the child to speak with the judge.
Remember: The Child’s Best Interest Always Wins
Like any child custody battle in Texas, the child’s best interest dictates where he or she will live. Depending on the unique circumstances of each case, a judge could decide to the give custody to the child’s second preference. This means - even if your child wants to live with you - the judge may decide to place him or her with the other parent.
Types of Custody in Texas: Joint and Sole Conservatorship
In Texas, “child custody” is technically called “conservatorship.” As a parent, you can have sole or joint conservatorship. Generally speaking, Texas courts tend to assume that joint conservatorship is best – unless you can prove otherwise. Common reasons for sole conservatorship include:
- One parent has not been present in the child’s life
- A history of drugs, crime or alcohol addiction
- One parent has a history of neglect or violence
Even with joint conservatorship, parents may not have equal possession of the child. If you’re facing a child custody battle, speak with a family lawyer at Hendershot, Cannon & Hisey, P.C. to see how we can help you and your family.