Dwyer Law Firm, Attorney at Law

When Can A Child Decide Who He Or She Will Live With?


Texas courts do not let children decide with which parent they will live. If the case is a nonjury matter, if proper application is made, the court shall interview in chambers a child 12 years of age or older to determine the child’s wishes as to conservatorship or as to the person who shall have exclusive right to determine the child’s primary residence. Additionally, the court may interview a child under the age of 12 as to the same issues. A party may also request that the in chambers interview be recorded and made a part of the official record of the court. Either way, the Court still has the discretion to decide what is in the best interest of the child.

Additionally, the court has discretion to interview a child in chambers regarding conservatorship, exclusive right to determine the child’s primary residence, possession, access, or any other issue in the suit affecting the parent-child relationship.

What Are Grandparents Rights In Child Custody Cases?

Under limited circumstances, grandparents may have the right to go to court and request custody of a child. The main statutory provision requires proof that the child’s present circumstances or placing the child with the child’s parents would significantly impair the child’s physical health or emotional development. In addition to conservatorship, grandparents may have the right to seek access/visitation with the child. However, if both parents’ rights have been terminated either by death or through legal proceedings, the grandparent no longer has standing to seek access to the child.

Further, a Federal Supreme Court case, Troxel, provides that in grandparent access cases, the grandparent must overcome the presumption that “a fit parent acts in the best interest of his/her child” when limiting the grandparent’s access to the child. This is a heavy burden.

How Long Do Child Custody Matters Generally Take To Get Settled?

Child custody matters may take from a few months to several months to run through the court process and come to a conclusion.

When Is A Guardian Ad Litem or A Custody Evaluator Required In A Custody Case?

Texas law provides for many court-ordered representatives in suits affecting the parent-child relationship. There are the following representatives:

  1. Amicus attorney- An attorney appointed by the court in a suit other than one filed by a governmental entity, whose role is to provide legal services necessary to assist the court in protecting a child’s best interest, rather than providing legal services to the child.
  2. Attorney ad Litem- Is an attorney who provides legal services to a person, including a child, and does the duties of undivided loyalty, confidentiality, and competent representation.
  3. Guardian ad Litem- Is a person appointed to represent the best interest of the child.

Your attorney and the court will decide when and if any of these representatives are needed.

Texas courts are more regularly appointing experts such as psychologists, psychiatrists, social workers, and licensed mental health counselors and consider their professional opinions in determining child custody issues. If conservatorship, possession and access are the contested issues, a party may file a motion requesting the appointment of a child custody evaluator. The Texas Family Code also provides that a social study may be requested which delves into the circumstances and condition of a child who is the subject of a suit or a party to a suit, and the home of the person requesting conservatorship of, possession of, or access to a child.

Will My Child Ever Need To Appear In Court?

A child testifying in court is generally frowned upon by most judges. However, a child may appear and interview with the judge in chambers regarding conservatorship, exclusive right to determine the child’s primary residence, possession, access, or any other issue in the suit affecting the parent-child relationship. Further, if a jury trial is requested, the child may testify in open court as long as the court determines the child is old enough to be “competent” as a witness.

What Can I Do To Increase My Chances Of Winning A Custody Case?

In order to improve your chances of winning a custody case, hire a lawyer who has experience in the courtroom. Further, follow his or her direction as to how to proceed with the case. Remove drug and alcohol issues from your life so that they do not negatively influence the outcome. Be a good parent; especially be an integral part of your child’s life. Be reasonable in your communications regarding the child with your spouse or ex-spouse. Keep the issues out of social media.

Under What Circumstances Can I Petition To Modify A Custody Order?

The court may modify an order that provides for the appointment of a conservator of the child that provides the terms and conditions of conservatorship, or that provides for the possession of or access to the child if it is in the best interest of the child and circumstances of the child, conservator, or other party affected by the order have materially and substantially changed since the earlier of the date of the rendition of the order or the date of the signing of a mediator collaborative loss settlement agreement on which the order is based. Additionally, if a child is at least 12 years of age and has expressed to the court in chambers, the name of the person who is the child’s preference to have the exclusive right to designate the primary residence of the child, and it’s in the best interest of the child, the court may modify conservatorship or possession and access.

For more information on Child Custody In Texas, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (972) 746-2805 today.

Rex Dwyer, Esq

Get your questions answered. Call Now for Your Free 30 Minute Consultation (972) 746-2805.

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