The most common question I get asked in my practice is what age a child must be in order to choose the parent that child gets to live with primarily. The fact is that a child in Texas does not have the absolute right to “choose” the parent they will live with primarily. The law in this area has changed recently to correct some of the unforseen problems that resulted from prior statutes dealing with this issue.
Under the old law, attorneys would get an affidavit from a child 12 years or older that stated which parent the child “chose” to live with primiarily. The Judge would consider the affidavit in determining what was in the best interest of the child, but was not required to follow the child’s wishes. The unforseen result of this statute is that it brought the child right in the middle of the couple’s dispute.
The new law, outlined in Texas Family Code Section 153.009, does away with the prior law’s affidavit requirement and allows a child 12 years or older to be interviewed in the Judge’s chambers 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. The Judge will consider the child’s wishes in determining what is in the child’s best interest but is not required to follow the child’s wishes.
Although the law has changed recently, the answer to the question remains the same in that a child in Texas does not have the right to choose which parent the child will live with primarily. At age 12, the child may be interviewed by the Judge to suggest which parent the child would “choose” and the Judge will consider this in determining what is in the child’s best interest.
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