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?