Preference of child over 12
If you have been divorced for some time, or if you have had orders in place for quite a while, you may have been told that once your child reached the age of twelve (12) he or she could “pick” which parent they want to live with. In truth, under the terms of the old Family Code provision, the child could sign a written preference stating where they would like to live, but the Judge still had to determine where it was in the child’s best interest for him or her to reside. So, if a child wanted to live with dad because dad got a keg and hookers every weekend, the judge could decide whether living there really was in the child’s best interest. Often, “popular” was outweighed by “safe”.
The Texas legislature revised the Family Code to remove the language allowing children to state their preference regarding residency. Too often, one parent would coerce the child to signing a preference and the other parent would retaliate by making the child sign another preference, revising his or her prior decision. The other parent might then talk the child into signing a third preference, and the battle would be on.
In response to this back-and-forth tug-of-war, the Texas legislature amended the Family Code and omitted the written preference provision. Texas kids may no longer sign a form indicating where they wish to reside. If the child is at least ten (10) years of age, the child may testify in court should they want to do that. And, even if they are younger than age ten (10), a motion may be made to allow the judge to interview the child in chambers.
You may be disappointed, if you have been hoping to go back to court once your child is twelve (12) years old. You may still file to modify your orders if you believe that it would be in the child’s best interests for him or her to reside with you. The only thing that has really changed is the Legislature’s decision to take your child out of the middle of the parental tug-of-war.