A Child’s Say: Factoring Kids’ Opinions About Custody

Jane Mapes
By: Jane Mapes
PublishedMar 6, 2024
3 minute read

There’s a misconception that when kids of divorced parents turn a certain age – most people think around 12 or 13 – they get to decide with which parent they want to live. Well, that’s just not true.

In this short blog post, I’ll dispel the “kids’ decision myth” and tell you when a child really can talk to a judge about their living arrangements.

When parents divorce, Texas courts encourage them to create their own custody arrangements. This is known as a parenting plan. Texas law requires a parenting plan in a final divorce decree or order in a suit affecting the parent-child relationship. Tex. Fam. Code § 153.603

This arrangement should be created without the child(ren)’s input. If parents cannot find common ground, the matter will be left for the court to decide. Generally, a judge will order that the parents’ time with the children be awarded according to the Texas Standard Possession Order or Expanded Standard Possession Order.

Under the Texas standard possession order or expanded standard order, the child lives primarily with one parent, and the other parent has a schedule of their time with the child. The available options for these standard possession orders vary based on how far apart the parents live from one another. Parents may elect an expanded standard possession schedule at the beginning of their divorce.

When Can a Child Talk to the Judge?

So, when does a child get to express their wishes about where they want to live? Beginning at age 12, the Court must talk to the child, if the child asks to speak to the Judge about their preferences. Before a child is 12, it is up to the Judge’s discretion to speak to the child, if a child asks to do so.

You or your child’s other parent may file a Motion for Judge to Confer with Child.

“In a nonjury trial or at a hearing, on the application of a party, the amicus attorney, or the attorney ad litem for the child, 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. The court may also interview a child in chambers on the court’s own motion for a purpose specified by this subsection.” Tex. Fam. Code § 153.009 (a)

This discussion is held in the judge’s chambers away from their parents. However, the court may permit the following individuals to be present during the discussion with the child:

  • A parent’s attorney
  • An amicus attorney (one who represents the child’s best interests and makes recommendations to the court based on investigations)
  • An attorney ad litem (one who is appointed to represent the child)

The conversation between the child and the judge may be recorded if any of the above individuals file a motion for that. The court itself can also move for the interview to be recorded and become part of the case’s record.

How Much Weight Your Child’s Opinion Carries

I want to underscore that a judge will determine what is in the best interest of your child regardless of what your child wants.

In my experience, judges approach interviewing a child with great care and sensitivity. They often prefer to wait until the end of the trial to speak with the child. This allows the judge to hear all of the case’s evidence first.

When Should I Consider Filing a Motion for Judge to Confer with Child?

When You Have a Parenting Plan Already in Place

The court expects each parent to follow the parenting plan and encourage the child to have a relationship with the other parent. So if your older child has begun to express opinions about their living arrangements, talk to them about what is motivating the change.

If the issue with the other parent involves abuse of any kind, it is time to speak to your attorney about modifying the possession and access order.

It can be difficult to enforce a custody arrangement when your child is a teenager. Teens often want to spend their free time with friends, at part-time jobs, and participating in extracurricular activities. However, you should remind your child that it’s important to make time to visit with their other parent.

When You are in the Midst of a Divorce

If your divorce is not settled yet, I encourage parents to carefully consider whether it would be in their child’s best interest to involve them at all. Most children do not want to choose between their parents. Putting them in a position to discuss who they want to live with the most can cause them unnecessary stress and feelings of guilt.

Talk to a Family Law Attorney About Your Child’s Wishes

If your child has begun to voice strong opinions about their living arrangements, talk to a family law attorney. Our team can advise you on how to address this sensitive situation. Call 214-884-3775 to begin your case assessment.


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