When Children Have a Voice: Understanding Their Role in Texas Custody Decisions
Picture this: A 14-year-old sits nervously in a judge’s chambers, knowing that what she says in the next few minutes could reshape where she calls home. It’s a scene that plays out in Texas courtrooms every day, and one that reveals a fundamental tension in family law—how much should children’s preferences matter when their parents can’t agree on custody?
At Varghese Summersett, we’ve guided hundreds of families through this delicate process. What we’ve learned might surprise you: The role children play in custody decisions is both more limited and more nuanced than most parents expect. Understanding these nuances isn’t just legally important—it can make the difference between a custody arrangement that helps children thrive and one that deepens their trauma.
The Texas Paradox: When “Must” Doesn’t Mean “Will”
Here’s what catches most parents off guard: Texas Family Code Section 153.009 mandates that judges “shall interview in chambers a child 12 years of age or older” when either party requests it. That word “shall” is legal speak for “must”—it’s not optional. Yet this mandatory interview doesn’t translate into mandatory compliance with the child’s wishes.
Think of it this way: Texas law guarantees older children a voice, not a vote.
This distinction matters enormously. In 2024, Texas continues to focus on ensuring that child custody arrangements serve the best interests of the child while balancing the rights and responsibilities of both parents. The interview requirement ensures children aren’t silenced in proceedings that fundamentally affect their lives, but it stops short of handing them decision-making power that could harm their own futures.
What Really Happens When Your Child Meets the Judge
Let’s demystify what actually occurs during these pivotal conversations. Unlike the dramatic courtroom scenes portrayed on television, child interviews typically occur in the judge’s chambers rather than in open court. Parents and their attorneys must wait outside—a requirement that serves a crucial purpose.
The Setting: Most judges consciously work to transform their chambers from intimidating legal spaces into more comfortable environments. They might:
- Remove their judicial robes to appear less formal
- Sit in regular chairs rather than behind their imposing desk
- Start with casual conversation about school or hobbies
- Use age-appropriate language rather than legal jargon
The Questions: Contrary to popular belief, judges rarely ask children point-blank where they want to live. Instead, they explore the child’s daily life through questions like:
- “Tell me about a typical week at Mom’s house”
- “What do you and Dad usually do together?”
- “How do you feel about your current schedule?”
- “Is there anything that would make things easier for you?”
The Record: Here’s a critical detail many parents overlook: For children 12 and older, the court must make a record of the interview if any party requests it. This recording becomes part of the case file, though Texas appellate courts have made clear that judges cannot seal these records from parents.
The Weight of Words: How Much Do Children’s Preferences Really Matter?
Now we reach the heart of the matter. A child’s preference plays a role, but it does not automatically decide the outcome. Texas judges must balance multiple, often competing factors:
Age and Maturity: While the law treats 12 as a threshold, judges understand that maturity doesn’t arrive on birthdays. A thoughtful 11-year-old’s insights might carry more weight than a 13-year-old’s impulsive preferences. As children get older, particularly those aged 16 or 17, their preferences may be more heavily considered.
Reasoning Matters: Judges listen not just to what children want, but why they want it. Consider these two scenarios:
- Scenario A: “I want to live with Dad because he lets me stay up late and doesn’t check my homework.”
- Scenario B: “I want to live with Dad because his house is closer to my school and my therapist, and I can continue playing on my soccer team.”
The second preference, grounded in stability and continuity, will likely influence the court far more than the first.
Consistency Counts: Preferences expressed consistently over time to multiple people—teachers, counselors, family friends—carry more credibility than sudden declarations that coincide with court proceedings.
The Best Interests Standard: What Texas Courts Really Consider
When making custody decisions, Texas courts prioritize the best interests of the child. This standard ensures that the child’s health, safety, and welfare are the primary concerns in determining custody arrangements. But what does “best interests” actually mean in practice?
Texas courts examine a constellation of factors that paint a complete picture of the child’s needs:
1. Physical and Emotional Safety: This goes beyond basic physical security. Courts look for:
- History of family violence or substance abuse
- Each parent’s mental health and stability
- The emotional climate in each home
- Evidence of neglect or inappropriate supervision
2. Stability and Continuity: Judges recognize that children thrive on predictability. They consider:
- Which parent has been the primary caregiver historically
- The child’s adjustment to their current home, school, and community
- Each parent’s work schedule and availability
- The likelihood of maintaining important relationships
3. Parental Fitness: This encompasses both capability and willingness:
- Each parent’s ability to provide for the child’s needs
- Willingness to encourage a relationship with the other parent
- History of involvement in the child’s education and activities
- Understanding of the child’s unique needs
4. The Co-Parenting Factor: Joint custody is usually preferred by judges in Texas as they believe it is usually in the best interests of the child to have both parents actively participating. Courts favor parents who:
- Communicate respectfully about the child
- Support the child’s relationship with the other parent
- Can separate their personal conflicts from parenting decisions
- Show flexibility when the child’s needs require it
When Children’s Voices Are Silenced: Red Flags Courts Watch For
Not all preferences are created equal. Texas judges are trained to recognize when a child’s stated wishes might not reflect their genuine feelings or best interests. Here are the warning signs:
Coaching Indicators:
- Using adult phrases or legal terminology beyond their years
- Reciting what sounds like a memorized script
- Expressing preferences that benefit the parent more than the child
- Sudden, dramatic shifts in preference without clear cause
Alienation Patterns: When one parent systematically undermines the child’s relationship with the other, children may express preferences based on false beliefs or manipulated emotions. Courts look for:
- Rejection of a parent without legitimate justification
- Black-and-white thinking (one parent all good, one all bad)
- Parroting the alienating parent’s complaints
- Lack of ambivalence typical in normal parent-child relationships
For more on this critical issue, see our comprehensive guide on parental alienation in Texas.
The Professional Advocates: Who Speaks for Children in Court
When cases become complex or contentious, courts often appoint professionals to ensure children’s interests are protected. Understanding these roles helps parents navigate the system more effectively:
Attorney Ad Litem: Think of this as the child’s own lawyer. An attorney ad litem conducts independent investigations, interviews relevant parties, and advocates for what they believe serves the child’s best interests—which may or may not align with the child’s stated preferences.
Amicus Attorney: The amicus attorney serves as a “friend of the court,” providing objective information to help judges make informed decisions. They don’t advocate for any particular outcome but ensure all relevant information reaches the court.
Guardian Ad Litem: In cases involving very young children or those with special needs, a guardian ad litem may be appointed to both investigate and advocate, serving as the child’s voice when they cannot effectively speak for themselves.
These professionals often spend considerable time with children in various settings, providing courts with insights that go beyond what emerges in a single chambers interview.
The Age Factor: How Texas Law Treats Different Developmental Stages
Children can decide which parent with whom to live when they turn 18 and are no longer considered a minor. Until then, the law creates a framework that acknowledges developmental differences:
1. Children can’t “choose” until they’re 18
Once a child turns 18, they are a legal adult and can choose where to live. Before that, custody (conservatorship) is determined by court order or agreement between parents.
2. Age 12+ – Judges must consider the child’s preference if requested
Under Texas Family Code § 153.009(a), if a child aged 12 or older expresses a desire to speak to the judge, the judge must interview the child in chambers to determine their wishes.
Here is the key statute:
Texas Family Code § 153.009(a)
“In a nonjury trial or hearing, on the application of a party, 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.”
3. Under Age 12 – Interview is discretionary
For children under 12, judges have discretion on whether to conduct an in-chambers interview. That’s also in § 153.009(a):
“The court may interview in chambers a child under 12 years of age…”
Modifying Custody: When Children’s Changing Preferences Matter
Life doesn’t stand still after custody orders are entered. Children grow, circumstances change, and preferences evolve. But a child’s changed preference alone rarely justifies modifying custody. Texas requires demonstrating a material and substantial change in circumstances since the last order.
What Constitutes “Material and Substantial”?
- A parent’s relocation affecting the child’s stability
- Significant changes in work schedules impacting availability
- New safety concerns or risk factors
- Changes in the child’s needs (medical, educational, emotional)
- Evidence of alienation or interference with the parent-child relationship
The Modification Process:
Parents seeking to modify custody based partly on a child’s preference should:
- Document the material changes in circumstances
- Consider whether the child’s preference reflects genuine needs
- Evaluate whether the change truly serves the child’s best interests
- Prepare for the court to conduct a new best interests analysis
Practical Strategies for Parents: Navigating Without Manipulating
How can parents respect their children’s voices while protecting them from custody conflicts? Here’s guidance based on what actually works in Texas courts:
DO:
- Listen Without Lobbying: Create safe spaces for children to express feelings without fear of disappointing you
- Focus on Their Needs: Frame discussions around what helps them thrive, not parental preferences
- Document Appropriately: Keep records of significant statements or concerns, but don’t interrogate
- Seek Professional Help: Therapists can provide neutral spaces for children to process emotions
- Maintain Routines: Stability in daily life helps children cope with custody transitions
DON’T:
- Coach or Rehearse: Judges easily detect scripted responses
- Make Promises: Don’t guarantee outcomes you can’t control
- Discuss Adult Issues: Financial concerns and legal strategies aren’t children’s burdens
- Use Children as Messengers: Communication between parents should be direct
- React Emotionally: If children express preferences for the other parent, respond with understanding, not hurt
The Hidden Costs: How Custody Battles Impact Children
Research consistently shows that how parents handle custody disputes matters more than the actual custody arrangement. Children caught in high-conflict custody battles often experience:
Immediate Effects:
- Anxiety and depression
- Academic struggles
- Social withdrawal
- Physical symptoms (headaches, stomach problems)
- Sleep disturbances
Long-term Consequences:
- Difficulty forming secure relationships
- Higher rates of mental health issues
- Increased likelihood of substance abuse
- Challenges with conflict resolution
Understanding these risks underscores why Texas courts prioritize best interests over preferences—and why parents must too.
Special Circumstances: When Standard Rules Don’t Apply
Military Families: A court cannot make permanent changes to a custody order just because a parent is deployed with the military. Temporary modifications may be necessary, but deployment alone doesn’t constitute grounds for permanent change.
Family Violence: When abuse allegations exist, standard preference considerations shift dramatically. Courts prioritize safety over all other factors, and children’s preferences may be viewed through the lens of trauma and potential manipulation.
Special Needs Children: Developmental disabilities, medical conditions, or educational needs can significantly impact how courts weigh preferences and determine best interests. Parents of special needs children often benefit from specialized legal guidance.
Multiple Children: When siblings express different preferences, courts face additional complexity. While keeping siblings together is generally preferred, courts may consider:
- Significant age gaps and different developmental needs
- Each child’s unique relationship with each parent
- The impact of separation on sibling bonds
- Practical considerations like schools and activities
The Technology Factor: How Modern Life Complicates Custody
Today’s connected world creates new considerations for custody arrangements:
Virtual Visitation: Texas law recognizes electronic communication as a supplement to (not replacement for) physical possession. Courts may order:
- Regular video calls between children and non-custodial parents
- Shared online activities and games
- Virtual participation in homework or bedtime routines
- Electronic access that respects both parents’ time
Social Media Concerns: Parents must navigate:
- Appropriate sharing of children’s information online
- Monitoring children’s own social media use
- Preventing alienation through digital channels
- Protecting children from involvement in online disputes
Looking Ahead: Recent Legal Developments
In 2023, Texas made several changes to its child support laws, including provisions that can indirectly affect custody arrangements. While the fundamental framework for children’s preferences remains unchanged, courts increasingly recognize:
- The importance of both parents’ involvement
- The need for flexibility in modern family structures
- The impact of economic factors on custody decisions
- The evolving nature of work and its effect on parenting time
The Bottom Line: Balancing Voices and Choices
Understanding the role of children in Texas custody cases requires accepting a fundamental paradox: Their voices matter tremendously, but their choices cannot control outcomes. This tension reflects a deeper wisdom in Texas family law—protecting children sometimes means protecting them from the weight of decisions they’re not equipped to make.
The best outcomes occur when parents can separate their own conflicts from their children’s needs, when judges can discern genuine preferences from manipulated ones, and when the legal system can craft arrangements that truly serve children’s best interests.
Take the Next Step: Protect Your Child’s Best Interests
Navigating custody decisions involving children’s preferences demands both legal knowledge and emotional intelligence. At Varghese Summersett, we combine deep expertise in Texas family law with a genuine commitment to achieving outcomes that allow children to thrive.
Our attorneys understand that behind every case are real children whose futures hang in the balance. We work to ensure their voices are heard appropriately while protecting them from the burden of choosing between parents they love.
Whether you’re establishing initial custody arrangements, responding to proposed changes, or concerned about your child’s well-being in current proceedings, professional guidance makes a critical difference. Contact Varghese Summersett today at 817-900-3220 or through our online contact form to schedule a consultation. Let us help you navigate this challenging process while keeping your child’s best interests at the forefront.
Frequently Asked Questions About Children’s Role in Texas Custody Cases
At what age can a child express their preference in a custody case in Texas?
The magic number in Texas is 12—but it’s not as simple as that. Texas law requires judges to interview children 12 years or older if either party requests it. However, younger children can also express preferences if the judge believes they’re mature enough to contribute meaningfully to the discussion.
Here’s what parents need to understand: The right to be heard doesn’t equal the right to decide. Even a 17-year-old’s strongly stated preference won’t automatically determine custody. The judge weighs that preference against numerous other factors—the child’s reasoning, each parent’s fitness, stability of proposed arrangements, and ultimately, what serves the child’s best interests.
Think of it as a sliding scale: A 7-year-old’s preference might barely register, a 12-year-old’s carries some weight, and a 16-year-old’s well-reasoned preference could significantly influence the outcome. But at no age does a child in Texas get to unilaterally choose their living arrangement.
What exactly happens when a judge interviews my child?
The Hollywood version of children testifying in packed courtrooms couldn’t be further from reality. In Texas, these conversations happen in the judge’s private chambers—think of it more like a careful conversation than an interrogation.
The judge typically starts with easy topics to help the child relax. They might discuss school, friends, or hobbies before gradually moving to family matters. Rather than asking “Who do you want to live with?”—a question that forces children to choose sides—skilled judges ask about daily routines, feelings, and experiences.
Parents and their attorneys cannot be present during the interview, which helps children speak freely. However, the court may permit attorneys representing the child (ad litem or amicus attorneys) to attend. For children 12 and older, the interview must be recorded if any party requests it.
The entire process typically lasts 15-30 minutes, though complex cases might require longer conversations. Judges are trained to recognize signs of coaching or distress and will adjust their approach accordingly.
Can a judge ignore what my child wants?
Absolutely—and it happens more often than you might think. A child’s preference plays a role, but it does not automatically decide the outcome. Judges must look beyond what children say to understand why they’re saying it.
Common reasons judges override children’s preferences include:
- Safety concerns: If the preferred parent has substance abuse issues or a history of violence
- Educational neglect: When living with the preferred parent would disrupt schooling
- Manipulation evidence: Signs that one parent has coached or alienated the child
- Short-sighted reasoning: Preferences based on fewer rules rather than better parenting
Judges must explain their reasoning when overriding a child’s preference, particularly for older children. They balance the child’s autonomy with their responsibility to ensure decisions that promote long-term wellbeing, not just immediate happiness.
How do courts detect if a child has been coached?
Texas judges are remarkably skilled at identifying coached testimony—they’ve seen it all. Red flags include children using legal terminology (“joint managing conservatorship”) or adult phrases beyond their years. Scripted-sounding responses, especially those that benefit the parent more than the child, raise immediate suspicion.
Judges also look for:
- Emotional incongruence: A child claiming to hate a parent while showing no genuine emotional distress
- Black-and-white thinking: One parent portrayed as perfect, the other as entirely bad
- Sudden preference changes: Dramatic shifts coinciding with court proceedings
- Parroted complaints: Children repeating specific grievances that mirror one parent’s court filings
When coaching is suspected, judges may order psychological evaluations, appoint child representatives, or rely more heavily on objective evidence rather than the child’s stated preferences. The parent who coaches often damages their own case more than helping it.
My teenager refuses to visit their other parent. What can the court do?
This presents one of family law’s most challenging scenarios. While children cannot refuse visitation until they turn 18, enforcing custody orders against resistant teenagers often proves counterproductive.
The custodial parent has a legal obligation to encourage visitation, but courts recognize the limits of parental control over older teens. Forced compliance can damage parent-child relationships beyond repair. Instead, judges often order:
- Family therapy to address underlying conflicts
- Graduated visitation schedules to rebuild relationships
- Modification of arrangements to address legitimate concerns
The key is determining whether the refusal stems from legitimate issues or parental alienation.
Can my child’s therapist testify about their preferences?
The intersection of therapy and custody proceedings requires careful navigation. While therapists can provide valuable insights, several factors complicate their testimony:
Confidentiality concerns: The therapist-patient privilege generally protects communications, though parents may waive this privilege for minor children. However, courts increasingly recognize that breaching therapeutic confidentiality can harm the child’s treatment.
What therapists can share:
- General observations about the child’s adjustment
- Behavioral patterns and emotional responses
- Recommendations for the child’s wellbeing
- Concerns about safety or welfare
What’s typically protected:
- Specific statements made in therapy
- Details about the child’s private thoughts
- Information that could damage the therapeutic relationship
Courts often prefer custody evaluators over treating therapists for preference testimony, as evaluators can assess family dynamics without the complications of an ongoing therapeutic relationship.
What if my children have different preferences?
Split preferences among siblings create particularly challenging scenarios for Texas courts. While judges generally prefer keeping siblings together, they must balance this against individual children’s needs and strongly expressed preferences.
Courts consider:
- Individual needs: Special educational, medical, or emotional requirements
- Sibling relationships: Whether separation would harm or help their bond
- Practical factors: School locations, extracurricular activities, and social connections
Judges rarely split siblings based solely on preferences. However, compelling circumstances—such as significant age gaps, documented conflict between siblings, or vastly different needs—might justify separate arrangements. The court might also consider creative solutions like:
- Different school-year and summer arrangements
- Keeping siblings together but adjusting visitation schedules
- Gradual transitions that respect both preferences and sibling bonds
How has technology changed how courts handle children’s preferences?
The digital age has transformed how courts gather and evaluate children’s input. Text messages, social media posts, and electronic communications now provide windows into children’s authentic feelings—sometimes contradicting their formal statements.
Digital evidence courts consider:
- Text exchanges between children and parents
- Social media posts reflecting their emotional state
- Email communications about custody preferences
- Video calls showing parent-child interactions
Virtual participation options: Some courts now permit video interviews for children in certain circumstances, particularly when distance or health concerns make in-person meetings difficult. This can reduce anxiety for some children while maintaining the integrity of the process.
Cautionary notes: Parents must be careful about:
- Pressuring children through digital channels
- Using children’s private communications without considering their privacy
- Creating digital evidence through manipulation
Technology has made authentic preferences easier to verify but has also created new avenues for inappropriate influence.
When should I be concerned about my child’s stated preferences?
Sometimes children express preferences that signal deeper problems requiring immediate attention. Parents should be particularly concerned when:
The preference seems driven by fear:
- Anxiety about disappointing a parent
- Fear of retaliation or emotional withdrawal
- Concerns about a parent’s reaction to their choice
The reasoning doesn’t match the child’s age:
- Young children citing complex financial reasons
- Teenagers suddenly focused on minute household rules
- Preferences that primarily benefit the parent, not the child
Behavioral changes accompany the preference:
- Depression or anxiety symptoms
- Academic decline
- Social withdrawal
- Regression in younger children
The preference includes rejection of extended family:
- Suddenly refusing contact with grandparents
- Rejecting entire sides of the family without clear cause
- Parroting negative statements about family members
These warning signs often indicate coaching, alienation, or other forms of inappropriate influence requiring professional intervention. Consider consulting a child psychologist or family therapist who can assess the situation objectively.
