A common misunderstanding in Texas divorce cases involving children is that a child twelve years or older gets to decide where they want to live. While this is somewhat true, the situation is more complicated.
If a divorce is final, a child’s input about where to live only comes up if a Motion to Modify is filed and in no way is it automatic. A child can’t just up and say “I want to live with dad” and move away.
If a divorce is in progress, the courts can listen to the child’s wishes, particularly older children. But, the child’s request isn’t binding and the parent challenging a change of possession can still show that it is not in the best interest of the child, especially if parental alienation is an issue.
In most cases, the wishes of the child do not come up at all. Regardless, the older the child the more difficult to overrule that child’s wishes. Somewhere around the age of 15 for a
If the child is over 12 the court MUST interview the child, but the consensus is that the court can and often does wait until final orders are entered before deciding to switch primary possession. For example, in one case our firm handled, the judge wisely declined to change where the children lived when temporary orders were entered. Sure enough, by the time the case ended, the children had changed their minds again and custody remained the same.
At the end of the day, don’t panic if your child wants to live with the other parent. Remember that a child’s interview is just one factor helping the judge decide what is in that child’s best interest. Older children’s opinions can carry more weight, but are still not a trump card. If you find yourself in a situation where your child either wants to live with you or doesn’t want to live with you anymore, schedule a consultation to see how we can help.