People are often of the understanding that children 12 years or older can get to decide which parent they will live with, but this is not necessarily the case. Texas Family Code 153.009 states that a judge “shall interview in chambers a child 12 years of age or older” if a request to do so is made by one of the attorney’s in the case 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.
However, interviewing the child doesn’t lessen the judge’s discretion to determine the best interest of the child. The judge still has the final say based on what he or she feels is in the best interest of the child considering the factors set forth in Holley and discussed here, such as the emotional and physical needs of the child, any potential danger, and the parents’ ability to meet the needs of the child.
Additionally, although most custody cases are decided by a judge a party is entitled to a jury on certain issues if he or she wants and in a jury trial the judge may not interview the child.
So although the desires of a child are definitely an important factor for the court to consider, those desires are still only one of many factors a court may consider. You should discuss with your attorney whether an interview with the court would be appropriate in your case, but plan on providing the court with supporting evidence nevertheless.
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