When can the kids decide?

One of the most common misconceptions I hear from people about child custody cases is that once a child reaches a certain age, that child can choose whether or not she wants to see mom or dad.  This is absolutely not the case.

Under the Texas Family Code, once a child reaches the age of 12, that child gets a vote.  The child can choose whether she wants to live primarily with mom, primarily with dad, or fifty / fifty with each parent.  This vote carries a lot of weight, and in order for a judge to go against the child’s wishes, a parent must prove those wishes are not in the child’s best interest.  For example, if Teen Girl likes living with Mom because Mom has no rules, Mom allows Teen Girl to drink, and Mom allows Teen Girl to have lots of private time with her boyfriend, whereas Dad has a lot of rules and does not allow those types of things, Dad has a legitimate argument that it is not in Teen Girl’s best interest to live primarily with Mom.

Although a child gets a vote at age 12+, more often than not I see agreements reached before the child actually has to meet with the judge.  If one parent requests a modification due to the wishes of the child, the other parent will often agree to avoid expensive litigation (assuming there is not a legitimate “against the best interest of the child” argument to be made).

I often hear from parents who say their children do not want to see the other parent at all, or they want to spend significantly less time with the other parent than is ordered.  I always remind those parents that, unless the other parent is a really bad parent (alcoholic, drug addict, abusive, neglectful, etc.), it is extremely difficult to get anything less than a standard possession order for that parent.  Further, it is the parent’s responsibility to ensure the children go to their periods of possession with the other parent, even if they do not want to go, or the parent can be held in contempt.  In my experience, the older a child gets, the more deference a judge will give to that child’s wishes, but the reality is that parents need to follow court orders.

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