No. One of the most common mis-perceptions about Texas law is that once a child turns 12, he or she can decide where he or she will live, meaning the child can decide who has custody.
I would ask all parents out there to think about how many major decisions a 12-year-old gets to make alone and have the decisions bind his/her parents.
- Whether to attend school?
- Whether to do homework?
- Whether to drink or do drugs?
- Whether to get a tattoo or piercing?
- When to start voting?
- When to start driving?
- What films to view?
Those are all major decisions that parents, generally, don't abdicate to the children. Courts don't either. And state law doesn't either.
The reasons: lack of maturity, lack of experience, lack of knowledge and lack of legal capacity. Basically, we know children are usually not prepared to make serious decisions. Some children may be perfectly capable of making some of those decisions, but usually, that is not the case.
If you read the section of the Texas Family Code dealing with a choice of conservator, the Code does permit a child of at least 12 years of age to file a written statement to name the person the child prefers to decide his/her primary residence. In other words, a child can sign a written statement stating his/her choice for custody.
The key phrase follows that part of the Code: "subject to the approval of the court". In other words, the judge always makes the final decision. The child does not get to make a binding decision.
My suggestion is to keep the children out of the court system. They don't need to be involved in choosing sides. Kids usually lack the maturity to make a good decision. Plus, it puts kids in the middle between the parents, and that's not good. If necessary, the judge can interview a child (at least 12 years of age) to find out some facts about the case. Even then, it is unlikely that a judge will ask the child to name who should have custody. The parents are perfectly capable of finding and presenting all the necessary facts for a judge to make the decision.
What do you think about letting kids have a say on this topic?
9 comments:
Although, i do think they should be allowed to voice their opinion, I agree that they are not matuer enough and that they should be left out of these procedings as muchas possible!
I enjoy the blog! I've actually started a similar one on my site, and would appreciate your feedback.
http://txfamilylaw.blogspot.com/
Hope all is well!
Natalie Gregg
The Law Office of Natalie Gregg
www.NatalieGregg.com
Thanks, Natalie. I've looked at your blog and can recommend it to readers for various family law issues. Good luck.
Anonymous:
There are times when a child is mature enough, and not under pressure from a parent, but they are rare. Input from a child can be appropriate in some situations, but children should not be put into situations that give them power or that lead them to believe they have the power to make the final decision. Thanks for your comment.
If both parents are found to be upstanding citizens than what judge should have the right to deny a child their parent. How would you feel if someone told you that you had to wait until next weekend to see you father/ mother again. This country has become a disgrace and very few people actualu deserve to have children. I am glad that God is God and not me, because I would make it so that no American could bear children.
So if the courts don't favor 12 yo making that decision, what age do they favor?
Actually, courts usually don't want kids to be making a decision of where they will live. There are so many ways that it can be harmful, courts want to keep the kids out of the middle. That's a decision that should be left to the adults -- if the parents can't agree, the (adult) judge will.
There are instances when a 12 year old or even younger SHOULD at least have the right to voice their preference/opinion to a judge. What about situations when one parent does not "get it" and won't take the child to their football games/practices or dance recitals just because it is the "other parents" weekend? What about when one parent may be Jewish and wants to observe the Jewish holidays and the other parent won't "let" them. In a perfect world, all this "best interest of the child" stuff sounds great, but what about what the child wants (within reason.)
Dick,
I agree totally! I have yet to see a case as well from which the parents didn't coerce a child to sign an affidavit. I am glad to see that Texas has finally thrown this out as of September 1st, 2009.
Parents, custody changes should only occur if it is in the child's best interest. That interest must be something far greater than your interpretation of the child's preference. I'm sorry, I agree with most judges and certainly the new law, the child's opinions should almost always be left out.
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