The Child's Choice in Texas Custody
My child wants to live with me not her father/mother. Doesn't that mean she lives with me?
My child doesn't want to go see his father/mother. Doesn't that mean he doesn't have to?
The answer to both of the above questions is ‘maybe' or ‘it depends.'
The two questions are similar in Texas law—the first is what part does a child's choice make in determining primary conservatorship, and the second, how does a court determine and enforce visitation rules and rights when the child is choosing not to see a parent.
The statute covering a child's choice of primary home has changed over the years I have practiced. At one time, a child as young as 10 could file with the court a choice of conservator, which was an important factor in determining primary residence. But too often, the other parent would also have the child sign a contradictory statement. Children are no longer under quite that same pressure. Instead, they can be interviewed in the judge's chambers as to their preference. Texas Family Code Section 153.009 now requires the judge, on a parties' motion, to conduct an interview of a child 12 years old or older in chambers to determine the child's preference as to the primary residence. BUT, the same statute states that ‘Interviewing a child does not diminish the discretion of the court in determining the best interests of the child' A modification of Texas orders can also be done if the child expresses in the judge's chambers the desire to live with a particular parent but again, the statute requires that the change be in the child's best interest. So, the child doesn't just choose; but he/she does get to express a preference.
Finally, what about the child who simply doesn't want to see the other parent? Absent very dangerous situations, I do not counsel my clients to keep a child from the other parent against a court order. But what if the child just won't go? Does Mom or Dad get in trouble when the child simply won't see the other parent? One line of authority holds that there is no such thing as passive contempt and if the custodial parent has the kids ready to go and the child refuses to go, the custodial parent cannot be held in contempt. (See Ex Parte Morgan, 886 S.W. 2d 829 (Tex. App. – Amarillo 1994, no writ). However, the second line of authority holds that the custodial parent has the obligation to drag the kids to the visiting parent's car, “kicking and screaming” or face contempt, unless that parent can affirmatively show “an involuntary inability to compel the visitation.” (See Ex Parte Rosser, 899 S.W. 2d 382, (Tex. App.—Houston [14th Dist.] 1995, no writ).
If you face either of these situations, a child's choice in an initial determination or modification of primary conservator, or a child choosing not to visit the other parent, seek an experienced family law attorney to help.