There appears to be a public misconception when it comes to the primary residence of and/or visitation with a child who has reached the age of 12.
The Texas Family Code states in part that “the public policy of this state is to: (1) assure that children have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child; and (2) provide a safe, stable, and nonviolent environment for the child . . .”
The Texas Family Code also provides that “the best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.
The trial courts are given latitude in determining the best interests of a child and the Texas Supreme Court has articulated a non-exhaustive list of factors that help guide the trial court’s determination of the best interest of the child.
When your child turns 12, can they decide which parent to live with?
The Family Code provides that the court shall interview in chambers a child 12 years of age or older 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 code also states that interviewing the child does not diminish the discretion of the court in determining the best interests of the child.
The Legislature has chosen to give a child that has reached the age of 12 a voice in the matter and an avenue to inform the court of the child’s wishes. However, it is still up to the court to determine what is in the child’s best interest, and the child’s wishes are only a factor for the court to consider in making that determination. For example, it’s not hard to imagine that a child may want to live with the parent who has lax rules concerning homework, chores, video games, discipline, bed time, etc., instead of the parent who makes and enforces rules.
Therefore, while a 12-year-old child has the right to make his or her wishes regarding where to live known to the court, the child does not have the ultimate decision.
When your child turns 12, can they decide whether they want to visit with the non-primary parent?
The Family Code also provides that a court may 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.
Again, the statute makes it clear that the child’s wishes as to access (visitation) by the parents is only a factor for the court to consider in determining the best interest of the child. The court has discretion in determining the best interests of the child and the child’s wishes are not binding on the court.
Therefore, while a court may listen to the wishes of the child who is 12 years of age regarding visitation with a parent, the decision whether the child must visit with that parent is up to the court, not the child.
While all of the above applies in an original divorce case or suit affecting the parent-child relationship, it equally applies to, and the issue most frequently comes up in, a suit for modification of a prior order.
When a child turns 12 and desires to live with the visiting parent and it has been more than one year since the date of a prior order establishing conservatorship and possession, the visiting parent may file for modification of the prior order with a request that the court interview the child. The Family Code provides grounds for a court to modify the prior order based on the child’s preference expressed in chambers as to the person to have the exclusive right to designate the primary residence of the child and that it is in the best interest of the child. Again, the child’s preference is only a factor, which does not bind the court. The statute provides that if the court finds the child’s preference is in his or her best interest, those grounds will support a modification of the prior order.