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Can a Child Choose Which Parent to Live with in Texas?

“Can my child choose which parent to live with in our divorce (or child custody) case?” This is one of those questions that we hear frequently. This is a complex question, and the answer is often misunderstood. The statute that covers this is found under Section 153.009 of the Texas Family Code, which repeals the old law under Sec. 153.008.

Under the old law, a child age 12 or older could file with the court, the name of the parent who the child wants (or chooses) to decide where the child should live. While this was subject to the court’s approval, it DID NOT mean that a child age 12 or older could choose which parent he or she would live with.

It simply meant the child was stating his or her preference, and from there, the court would be the ultimate decision maker. Here lies the common misconception. Many parents thought this meant the child could choose which parent to live with. Instead, it simply meant it was “evidence” to be considered alongside the rest of the evidence. However, this law was repealed and replaced with what the Texas Legislature deemed a more appropriate procedure.

Do Children Still Have a Voice?

Under the new law, Section 153.009, children still have a voice but in a more practical way. Sec. 153.009 allows parents to request that the judge speak with their child. If the child is at least 12-years-old, the judge has to meet with the child. If the child is under the age of 12, the judge has the choice to meet with the child, but a meeting is not required.

The new law does more than address where the child will live, it also touches on visitation and a number of other issues in which the child may have an opinion or preference. Under the new law, a child can meet with the judge and voice his or her opinions on visitation, (if the judge agrees to hear the evidence).

It’s important for parents to understand that while their request for an interview between the judge and their child may be granted, the interview is still evidence that the court may use to make a decision. As before, the judge is still the one who ultimately makes the decision regarding custody (unless a parent chooses to submit his or her case to a jury) and possession or access; the law does not require that the judge follow the child’s wishes.