Can I Have My 12-Year-Old Child to Talk with the Judge?

The quick answer:  Yes.  

This is one of the most common  questions for Internet  searches that bring people to this blog, so I want to update my previous response. 

The Texas Family Code has been revised  -- no more written statements or battles of affidavits by a child.  It used to be that a parent who wanted his/her child to come live with him/her would talk it up over time with the child and then get the child to sign a statement saying he/she wanted to live primarily with a certain parent.  Naturally, the original parent would then pressure the child and get a similar written statement signed favoring the original parent.  Thankfully, that is no longer allowed.

Now, we can have a child talk directly to the Judge in most cases.  Hopefully, people will stop and consider whether that is a good idea.

Why do it?  People think it will help their case.  If their kid chose him/her, surely the Judge will go along with that.  It might work out that way, but it may also backfire and the Judge may figure out some undue influence has been exerted, or the Judge may figure out that the child has been manipulating everyone.  In any event, the Judge is not bound to do what a child requests.

Another problem: Stress.   Having to talk with a Judge will put a lot of stress on the child, not to mention the stress of having to choose one parent over the other.  Children often tell  each parent  that they want to live with  them.  Kids generally don't want to chose one parent over the other. They want to live in peace and usually want good relationships with both parents.

A different type problem is sometimes created:  empowering a child who then believes he/she can call the shots.  Some children realize the power they have and take advantage by holding out for rewards like a car, phone, video games, computer or other expensive item that the other parent won't or can't provide.

Finally,  when either or both parents try to influence the child, Judges have been around the block a few times and they can usually sniff that out.  If Judges detect that activity, they don't appreciate it and they will probably hold it against whoever chooses to do it.

Better choices: try a Collaborative approach and work together, or work with a counselor to generate ideas, or go to mediation, or have both parents go to a counselor (maybe include the child)

My bottom line:  Keep the kids out of the middle!  The adults can pursue their preferences for custody without trying to get the kids to take sides.

End of Summer Custody Disputes: Possible Solutions

The family law courts usually become busier in late July and August. Many custody change cases are filed and the parents want the issue resolved favorably before school starts. Unfortunately, it often takes many months or a year or more to get a final decision. Sometimes, it’s hard to get even a temporary decision before school starts. On top of that, it can be a very expensive process to be involved in.

When faced with a choice to file for custody, or a choice of how to
respond to a custody change suit, wise parents will consider whether there are any other ways for the parties to achieve their goals. The answer often is "yes".

Here are some suggestions to consider if you are faced with this issue in the near future.

• The parents can work together through the Collaborative Law process. It would be especially beneficial to bring in a child specialist to help them come up with some original creative ideas.


• If a parent really just wants more time with the child and recognizes that the current home is good, maybe letting the non-custodial parent pick up the child after school, or see the child in the evenings during the week or have an extra night or two overnight would help.


• If there are school problems, maybe bringing in a tutor, or letting the other parent tutor, would solve the problem. With school issues, it really is better to have both parents working together to come up with solutions. Again, a child specialist could be very helpful.


• Having both parents take a co-parenting class would help, especially if they were in the same class together. That way, they would both get the same information.
• If there are scheduling problems, maybe the parties could use an on-line service to share a calendar. There are several services available at very little cost and not requiring high tech expertise.


• The parents could also go to counseling together or even include the child in counseling. If the parties can work together somewhat, attending counseling together could be very effective.


• If both parties have strong feelings about some issues, they could go to a mediator or meet with a child specialist to work out some creative solutions. Having a qualified, neutral professional help them would give them a better chance of success.

You may have noticed that none of the suggestions involved rushing to the courthouse, filing and getting a hearing as quickly as possible. That’s because going to court is expensive, it escalates the fighting, it damages relationships and it generally will result in some standardized order that may not be very comfortable or effective for the parents and child. Usually, one side prevails in court and the other loses. Creativity is in short supply at the courthouse. A better solution is to think and talk before filing. Don’t get caught up in the emotion or perceived opportunity to succeed by starting a court fight. A better course of action is to keep the big picture in mind and focus on what’s truly best for your child – not just what you want!

End of Summer Custody Disputes: Should I Try to Get Custody?

Every year, at the end of July or the first of August, there is an upsurge of court filings where the non-custodial parent is seeking custody of a child, hopefully to be resolved before school starts. Immediately preceding that upsurge, the child has often spent from a week or two to a month with the non-custodial parent. Parting is not always sweet sorrow and when it is time for the child to go back to the other parent, often the battle begins.

There are four common ways that these conflicts develop.

First, there is a spontaneous start. The parent and child miss each other when they’re not together and they may have had an especially wonderful visit this time. Either the parent or child may start a discussion after thinking how wonderful it would be to live together "all the time".

A second possibility is that conditions (job, home, school, remarriage, etc.) may have changed and the change of custody might really be in the child’s best interest.

A third possibility is that one party has been planning it for a long time and has been planting seeds of discontent, envy or desire through hints or little comments made to the child or around the child. In effect, a parent can make a direct or indirect offer of some type to win over a child. Telling a child of 12 that he or she can get a computer game system or telephone if they live with the non-custodial parent can be pretty powerful. Promises of a car or freedom to do things the other parent won’t permit can work with older children.

A fourth possibility is that a party may act maliciously. That could include inventing or distorting allegations of abuse or neglect, or simply agitating behind the scenes to undermine the other parent. Often, a parent acting maliciously is actually angry over some unrelated and unresolved issue and uses the custody fight to get back at the other parent or to intimidate the other parent from pursuing some other matter.

Whatever the motivation, the difficult situation is often made worse by one side having a child, 12 years of age or older, sign a statement expressing his or her preference of the person he or she wants to designate the child’s primary residence. Even though signing that statement puts the child squarely in the middle, Texas law permits it and it is often used. (Quite frequently, the child later signs a statement choosing the original custodial parent to be the one to designate the child’s primary residence.)

Here are 5 things to consider when deciding whether to file a motion to change custody or when deciding how to respond to such a motion.

1. What would be in your child’s best interest? It’s not a
question about a parent – it’s about the child. Where is the best school? Where are the child’s friends? Which home is better, or are they both OK? Does the child have some special needs? If so, how can each parent contribute? Is one parent better able to provide support and nurturing than the other? Where is the better environment for the child? The focus should be on your child.

2. What’s really changed since custody was last determined?
While there are always changes in life, are there some significant changes that have affected your child?

3. Be careful to avoid manipulation by your child. Children learn
early that they can win by playing both parents against each other. They understand that they can create a bidding war and come out ahead. They can also punish one parent by wanting to live with the other one. If your child has initiated this process, look for signs of manipulation.

4. Figure out the underlying motivations of each party. Is this
really just a way to get to spend more time with a child? Is it intended to either get or avoid paying child support? (If so, it’s pretty short-sighted.) Have there been problems in sharing time between the parents? Does one parent really have a much better environment for the child now? Are there other conflicts between the parents? If so, is a custody fight a way to put pressure on the other parent?

5. What is this going to cost, financially and relationship-wise? Can you afford a custody fight that could cost tens of thousands of dollars? Is there a better use for that money? If you have gotten along well with the other parent, a custody fight will probably end the cooperation and peaceful coexistence. If the relationship is already not good, there may not be as much at stake, but that may mean that the other parent will fight harder out of anger. Either way, there will be a substantial cost.

A decision to file for a change of custody during the summer should not be made lightly. Before filing, one should carefully consider any hidden agendas, the costs involved, the reasons for changing and possible alternatives to filing.

How to Keep Your Child Out of the Middle

Most everyone would agree that it is a good idea to shield children from most parental conflict. Nevertheless, there are many times during and after divorces when children get drawn into family disputes and end up in the middle, with both sides pulling on them. The following is a brief list of 5 "Don’ts" and a "Do" that may help avoid such situations.

1. Don’t ask the children to decide. In the heat of family disagreements, it may seem simple or fair to just let the children decide where they want to live, or what visitation schedule they want to follow, etc.; parents may feel that’s like having a neutral person make the decision. Unfortunately, that puts a lot of pressure on the children and sets them up for guilt feelings and/or angry parents.

2. Don’t disparage the other parent or his/her family. This can be by direct comments made to a child or it can be done indirectly, such as comments made to others, but overheard by a child. It can also include body language and gestures that indicate disapproval or other bad opinions of the other parent. A child will likely take such actions or words as an attack on him or her.

3. Don’t argue around the kids. Disagreements are normal, even in well-functioning, intact families. Discussions and arguments between adults should take place just between adults, if at all possible. The kids don’t need to be drawn in or manipulated by the situations.

4. Don’t ask the children about the other parent. It’s not necessary for you to know everything that goes on when your children are with the other parent. Children will often tell about things they enjoyed or about big events, good or bad. Children don’t like being grilled about what happens when they visit their other parent.

5. Don’t use the children as messengers. If you want to send a message to the other parent, talk directly by phone or in person, send a letter or send an email. Kids aren’t always dependable anyway. And if you send a message by the children and then the other parent reacts badly when the message is delivered, the children are likely going to feel that they caused the problem.

Finally, something you can Do:

Do take a co-parenting class, preferably with the other parent. There are several good classes available in this area in person and even on line. I recommend the "in-person" class because you can learn more and get specific questions answered.

If you can avoid the temptation to put your children in the middle of adult disputes, your children will be happier and you should have better relationships with them (and maybe the other parent as well). If both parents will take a co-parenting class, all of this advice may be unnecessary!

Why You Should Try "Access Facilitation"

In many different ways, the court system in Texas, particularly in Tarrant County, Texas, is moving away from the traditional adversary process in family law matters. The new Tarrant County Family Law Center in Fort Worth could almost be called the new "conference center" because there are over twice as many conference rooms as there are courtrooms in the courthouse. For years, Tarrant County family law attorneys have spent more time negotiating than having hearings, and that’s generally a good thing.

Aside from the facilities, the court system in Tarrant County (and many other counties) emphasizes other processes which can lead to peaceful resolution of family law issues. Judges routinely instruct attorneys and parties to go outside the courtroom and talk to try to settle the issues without having a hearing. Judges also commonly order the parties to attend parenting or co-parenting classes. Those classes teach skills that enable the parties to work together in ways that were impossible earlier. And in almost every case, the court will order the parties to attend mediation before they can take up the court’s time in trial. That is an important step because about 90-95% of cases settle in mediation, and the judges know that.

One of the newest approaches is called Access Facilitation. It is a process in which the parties, usually without their attorneys, meet with a neutral social worker from the Tarrant County Domestic Relations Office to try to work out conflicts about custody, times and amounts of access (what we used to call visitation) and other parenting issues. The social workers are experienced in dealing with parents going through divorce and are trained is resolving disputes. They are not permitted to make binding decisions about how the matters should be settled, but they provide a safe and managed environment for the parties to more calmly discuss the problems and create solutions. There can be multiple sessions, if needed. The meetings take place at the courthouse, so they are convenient when the parties are in court. One of the best features is that Access Facilitation is free.

Prior to attending a session of Access Facilitation, it is helpful for the attorney to work with the parent to help her or him clarify what their goals are for their relationship with the child or children. It also helps to do a little brainstorming and have several different options to propose and discuss. Spending time trying to understand the other parent’s goals and motivations can also be very valuable. Both parents need to go into the sessions with open minds, a willingness to try something new and the ability to compromise. Finally, each parent should be aware of, and keep in mind, the costs and uncertainties of litigation.

Access Facilitation is an inexpensive, low-risk alternative to litigation that is available in virtually any case involving access or possession of children in Tarrant County. It is much less stressful than having a court hearing and can lead to some creative, customized solutions to conflicts over children. Having a neutral, experienced social worker lead the meetings can provide a safe and effective process to settle some very emotional issues. It won’t always work, but it has an impressive record. Even if it doesn’t lead to an immediate solution, it can eventually result in a settlement. And It’s Free!

Who is a Good Candidate for Collaborative Law?

As you may know, Collaborative Law is a process for resolving legal disputes without going to court, except to have an agreement approved by a court. Parties engage in a series of relatively short meetings where they identify their goals, assess the facts of the case, brainstorm to generate options to solve problems, evaluate the suitability of the various options and then create or select the best means to achieve the goals for each of the parties. Neutral experts are often brought in in Texas Collaborative Law cases, as needed, for specific functions. If the process breaks down, the parties must retain different attorneys to go to court with them.

Collaborative Law is a voluntary choice at the outset and the parties can opt out at any time, but it works about 93-95% of the time because, for most cases, it can result in more creative, customized and peaceful solutions than traditional litigation. While it may seem counterintuitive, many people are able to be open, honest and cooperative even in difficult cases that involve issues such as custody, extra-marital relationships, unique possession schedules and substantial and complex property issues.

People who have been choosing Collaborative Law have one or more of the following characteristics. They –

Value privacy. Collaborative meetings are private. There are no public hearings at the courthouse. Personal and financial information can be protected.

Want to make their own decisions. Instead of turning things over to a judge, the parties are able to create their own solutions and not be bound by tradition or arbitrary guidelines or standards.

Prefer to determine their own time schedule. In a litigated divorce, the parties often must follow an arbitrary time schedule imposed by a court and can be required to appear or take actions whenever the court wants them to, regardless of convenience or needs. In Collaborative cases, the parties decide how fast or slow they move and set meetings or take actions when they want to do so.

Often want or need to maintain a good relationship with a spouse, post-litigation. If the parties are parents, they usually see the value in cooperating and sharing the raising of their children.

Appreciate saving time and money by using jointly-hired neutral experts who work for both parties to create solutions. A neutral financial planner can often save money (and assets) for both parties by wise use of tax planning when assets are divided.

Are concerned primarily with the children’s best interests. They get neutral expert help to set up workable arrangements that suit the children and fit the parents’ situation.

Look to the future, rather than dwell on past conflicts. They focus on what good can come out of a difficult situation instead of dredging up all the past arguments and dirt on the other party. They may have had a bad experience in litigation, or may have seen it with family or friends. They realize that they can accomplish more and get better results by cooperating and acting as mature adults.

Collaborative Law will not work for everyone, but it is a great option for many. People who are mentally ill, violent or just very unrealistic are not appropriate for Collaborative Law. Likewise, people with fixed ideas, unwilling to consider other options, cannot function in a Collaborative case. For many others, such as ones described above, Collaborative Law encourages hope for the future and life with less conflict.