In Texas, a child cannot choose which parent to live with until age 18. However, under Texas Family Code § 153.009, children age 12 or older have the right to meet privately with a judge to express their custody preferences. The judge must consider the child’s wishes but is not required to follow them. The court’s primary obligation is determining what serves the child’s best interest, not simply granting the child’s request.
Can a Child Age 12 or Older Choose Which Parent to Live With?
No. This is one of the most common misconceptions in Texas family law. More than a decade ago, Texas Family Code § 153.008 allowed children age 12 or older to sign a “designation of preference” form specifying the parent with whom they wanted to live. The Texas Legislature repealed that law because both parents would pressure the child to sign conflicting documents, placing the child squarely in the middle of the custody battle.
Today, a child of any age cannot unilaterally decide custody arrangements. Only a court order or a written agreement between the parents can establish where the child lives.
What Is the Current Law on a Child’s Custody Preference in Texas?
Texas Family Code § 153.009 now governs how a child’s preference is communicated to the court. Under this statute, a child age 12 or older may meet with the judge in chambers (the judge’s private office) to discuss their wishes regarding primary conservatorship, visitation schedules, or any other issue affecting the parent-child relationship.
This private interview serves two purposes. First, it gives the child a voice without the pressure of testifying in open court. Second, it allows the judge to assess the child’s maturity level and ability to make sound decisions.
Is the Judge Required to Interview the Child?
It depends on the child’s age. If the child is 12 or older and a parent requests the interview, the judge must grant it. Texas law makes this mandatory. If the child is under 12, the interview is discretionary. The judge decides whether speaking with the child would be helpful or appropriate given the circumstances.
How Much Weight Does a Child’s Preference Carry?
A child’s stated preference is one factor among many. Texas Family Code § 153.002 requires courts to make custody decisions based on “the best interest of the child.” To guide this analysis, the Texas Supreme Court established the “Holley factors” in Holley v. Adams, 544 S.W.2d 367 (Tex. 1976). These factors include:
- The child’s own desires
- The child’s emotional and physical needs now and in the future
- Any emotional or physical danger to the child now and in the future
- The parenting abilities of each party seeking custody
- Programs available to assist each parent
- Each party’s plans for the child
- The stability of each home environment
- Any acts or omissions by a parent suggesting the relationship is improper
- Any excuses for those acts or omissions
A teenager who clearly articulates thoughtful reasons for preferring one parent may influence the judge’s decision. A younger child who seems coached or cannot explain their preference may carry less weight. The judge evaluates each situation individually.
What Age Can a Child Refuse Visitation in Texas?
A child cannot legally refuse court-ordered visitation until age 18. Before that age, parents must comply with the possession order regardless of the child’s objections. A parent who allows a child to skip visitation risks being held in contempt of court, which can result in fines, jail time, or modification of the custody order against them.
If a child genuinely does not want to visit a parent, the appropriate remedy is to seek a modification of the court order through proper legal channels, not to simply ignore the existing order.
Can a Child Testify in a Texas Custody Case?
Yes, but courts generally try to avoid putting children on the witness stand. Testifying in open court can be traumatic, especially when parents are in conflict. The in-chambers interview under Texas Family Code § 153.009 exists specifically to protect children from this experience while still allowing their voices to be heard.
In some cases, a judge may appoint an amicus attorney or guardian ad litem to represent the child’s interests. These professionals can investigate the situation and report findings to the court without requiring the child to testify directly.
Frequently Asked Questions
At what age can a child decide custody in Texas?
A child cannot decide custody at any age in Texas. Only the court or a parental agreement can determine custody. At age 12, a child gains the right to speak with the judge privately about their preferences, but the final decision remains with the court until the child turns 18.
What happens if my child refuses to go with the other parent?
You must still comply with the court order. Allowing your child to refuse visitation can result in contempt charges against you. If there are legitimate concerns about the child’s safety or wellbeing, consult a family law attorney about filing a modification or emergency motion.
Will the judge automatically follow my teenager’s wishes?
No. While a mature teenager’s well-reasoned preference carries significant weight, the judge must consider all Holley factors. If the preferred parent has stability issues, a history of poor judgment, or other concerns, the court may rule differently than the child requests.
Can both parents request a child interview with the judge?
Yes. Either parent can request the interview for a child age 12 or older, and the judge must grant it. For children under 12, either parent can request an interview, but the judge has discretion to approve or deny it.
What questions will the judge ask my child?
Questions typically focus on the child’s daily routine with each parent, their comfort level in each home, relationships with siblings and extended family, school and activities, and their reasons for any stated preference. Judges are experienced at identifying coached responses.
Talk to a Fort Worth Child Custody Attorney
Child custody disputes are emotionally demanding. Whether you’re seeking primary custody, responding to a modification, or concerned about your child’s preferences, you need an attorney who understands Texas family courts.
Varghese Summersett Family Law Group represents parents throughout the Dallas-Fort Worth metroplex, including Fort Worth, Dallas, Southlake, and surrounding communities. Our team includes board-certified family law specialists with decades of combined experience in Texas custody cases.
Call 817-900-3220 to schedule a consultation with an experienced child custody lawyer.
