Paula Lock Smyth Law Offices
“Train up a child in
the way he should go
and when he is old,
he will not depart
from it.”
Proverbs 22:6

Can children choose who to live with in a divorce?

Many couples in Texas may be under the misconception that when a child reaches a certain age they can decide which parent they want to live with in the event of a divorce. However, this is not the case. There are certain provisions in the Texas Family Code regarding the right of children to express their wish of where they want to live, but there is no obligation for the judge to fulfill that desire.

According to the Texas Family Code, children who are at least 12-years-old will be interviewed in the judge's chambers to determine their wishes regarding primary custody. However, this can only be done on the application of one of the parties, the amicus attorney or the attorney ad litem for the child in a non-jury trial or at a hearing. If the child is younger than 12-years-old, the judge can decide if they want to interview the child for an opinion on where they want to live.

Simply interviewing the child does not reduce the court's discretion in determining where the best interests of the child lie with regards to custody. The court's responsibility when determining child custody is in assuring the child is brought up in a safe and stable environment and has continuing contact with their parents by creating a parenting plan that is in the child's best interests. If the divorcing couple has agreed to a parenting plan and the court finds that it is in the child's best interests, it will render an order based on that plan. However, if the court finds that the child's best interests are not being met, they may request a revised plan or order one on their own.

It is incorrect to assume that children's wishes will be the final word, but it is also incorrect to say they won't be considered at all. The best scenario would be if parents sat down together and drafted a parenting plan that respects their own and their children's best wishes.

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