Monday, March 16, 2009

Can My 12-Year-Old Decide to Live with Me?


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?

20 comments:

Natalie Gregg, J.D. said...

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

Anonymous said...

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!

Dick Price said...

Thanks, Natalie. I've looked at your blog and can recommend it to readers for various family law issues. Good luck.

Dick Price said...

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.

Anonymous said...

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.

Anonymous said...

So if the courts don't favor 12 yo making that decision, what age do they favor?

Dick Price said...

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.

Anonymous said...

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.)

FullCustodyDad said...

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.

Anonymous said...

I beleive a 12 year old should be able to choose who they want to live with. I am not from texas i am from a very small town in georgia and i lost custody of my children simply because the judge was a friend of my ex and i was representing myself in court. This judge actually told me the day he took custody away from me that i needed to get an attorney to get my kids back.All 3 of my kids told the judge that day that they wanted to live with me.At the time my oldest was 12 shes now 14 and they still wont let her live with me.

Dick Price said...

I don't know the details of Georgia law and certainly don't know the situation in your town, but what the judge said is often said in cities of all sizes and locations when a party tries to represent herself or himself in custody matters. It is a serious and complicated legal dispute and you should find a lawyer who can represent you. Trying to do a custody fight, with a lawyer on the other side, is a recipe for disaster.

Anonymous said...

Really good post!

Anonymous said...

These are great comments, however, what if the other parent is deceased, there were a verbal agreement made to the dying parent what familiy member that this child would live with, then the day this person dies, the father recant his words to the dying mother? This child is miserable because they have not been around the father's family, he is forcing the child on them, he will not make a comprise although he is aware of the mother's wish. You would think that the Judge would at least talk with the child then make a "sound judgement" to allow the child to live with the designated family member. This child has now lost their parent, was promised that they would be raised by a family member, the father left the mother and child while the mother was going through Cancer treatment, now he can waltz back into this child's life and hold he/she hostage. This is unfair and unhealthy to the child, for he/she cannot grive the death of the parent. This is a law that might need revising or have stipulation(s) added to it.

Anonymous said...

Nice Post. This record helped me in my college assignment. Thnaks Alot

Anonymous said...

If only the parents and ex would just try to keep peace and help the children, my ex has hurt me so bad and my child sees it in my eyes when he calls and threatens and act crazy and wants to be in control I smile and tell my child have a wonderful time with your dad she answered me if he is so wonderful why dont you go instead, and this is because she knows and hears and sees all and most of she remembers, ALways think twice, it might ruin your child for life with mistakes.

Anonymous said...

sometimes children are alot smarter than the adults. age twelve is allowable if the child in question is really mentally upset with the situation and wants away from it. rather they be allowed to chose a family member than run away.

Anonymous said...

I have a 6 year old grand daughter, Everytime she visits me and her dad she always says she dont want to live with her mom.She cies and begs me to tell her mom about her staying the mom says we brain wash her daughters, then threatens us about not seeing them anymore, I have raised them for 2 years with out courts, its hard for me she onsists she will be moving out of state What Can I Do ??? I cant sleep at night and i am restless ...

Dick Price said...

You need to go see a lawyer where you live. I can't give legal advice here and I wouldn't give advice to someone who's not my client. Please go see a lawyer where you live.

Anonymous said...

I think a child should at age 12 say which parent they want to live with because they are the one living in the household and knows the truth about what goes on day to day something the judge will"never" see or be a witness to. Some parents only want the child support check not the child....what does the judge think about that?

Anonymous said...

I live in Texas my daughter passed away 3 years ago my two grandchildren were living with me until it's a biological father stepped in he was never in their life before that the only reason why he came and picked his kids over to collect Social Security because he cannot afford to live on his own which year was in jail for drugs they do not like being there then don't go anywhere they're always in that apartment because there is never any money available for them to go anywhere they have to miss out of school activities trips when it's time to get to go anywhere is when they are with us I need some advice on this can somebody please tell me what to do