Allison was dropped off from her school bus. She opened the door to her home, walked in the kitchen, grabbed an orange to snack on and then headed to her bedroom to login to her laptop. She planned to login to her Facebook account to chat with friends about the days events at her middle school. She walked in her room and began screaming atop her lungs.
Allison: Mom we've been robbed! All of my things are gone. Where is my laptop? My phone and X-Box are gone!
Allison's mom Chaundra answered her.
Chaundra: We were not robbed Allison.
Allison walked out of her room and noticed nothing else in her home was out of place. She walked back to her room and noticed her jewelry and books were still in the room. Her posters remained on the wall. The only thing missing were her phone, X-Box and laptop. She walked back out her room and into her mom's home office to find her mom.
Allison: Mom where is my stuff?
Chaundra: Your history teacher called me today to discuss your behavior in his class. I was surprised to learn that he sent notices home about your behavior in his class several times in the past few months. Those notices were for me to sign and acknowledge I received his notice of your behavior. Even more interesting though, was he got signatures from me on notices I never saw or knew existed. He was kind enough to email those signed notices to me. Well lo and behold, the signature that was purportedly mine, was in your handwriting. When you learn to stop lying and playing around in class Allison, you will get your things back.
Allison: But they're not yours! Dad bought them for me. You have no right to take them.
Chaundra: Excuse me little girl! You're skating a thin ice. You live under my roof and you will abide by my rules. You are cutting up in class. I told you before if your school contacted me about your behavior again you would be grounded. So you took it up on yourself to lie when they contacted me by hiding their notices and forging my name on them to avoid trouble with me. Lying is not a behavior I will tolerate Allison. When you change your behavior, you will get your things back.
Allison: You are so mean! I am tired of living here! I want to move in with Dad.
Chaundra: You're Dad will say and do anything right now to appear as the good guy. I know one thing for sure, I am not raising a liar. Until you change your behavior Allison, you are not getting those things back.
Allison: Ugh! You are so unfair. Dad said, since I am now 12, all I have to do is tell a judge I want to live with him and I can move in with him. I am tired of living under the gestapo!
Chaundra: Well, I am happy to hear between passing notes with friends and being the class clown, you actually picked up something from history class.
Allison stormed off and slammed the door to her now barren bedroom. Chaundra played it cool in front of Allison but she was worried her twelve year old daughter could tell a judge she wanted to live with her ex-husband and change the current custody order. Chaundra wondered, how could this be real? How could a twelve year old have that much power in a custody case?
A Twelve Year Old's Preference Can Be Grounds To Modify A Texas Custody Order
The fictional conversation between Chaundra and Allison is meant to show a dynamic that can play out between a parent and a child. A child who is at least 12 years of age can tell a court in chambers their preference on who should have the exclusive right to designate their primary residence and can change a prior custody order.1 The in chambers interview can occur upon application of a party, amicus attorney, attorney ad litem for the child or on the court's own motion.2 The interview may occur for a non-jury trial or hearing only.3 The court may not interview a child in chambers regarding an issue on which a party is entitled to a jury verdict.4
Preference Is Not Limited To Custody Modification and Can Be From Kids Younger Than Twelve
While a court shall consider the in chamber interview of children twelve or older if properly requested, a court may consider the preference of a child younger than the age of twelve.5 The court may also interview a child in chambers to determine the child's wishes as to possession, access or any other issue in a suit affecting parent-child relationship.6
The Child's Best Interests Must Be Considered As Well
Modification of a current custody order because of the preference of a child twelve years or older is subject to limitations. Sometimes children desire a change which would not serve their best interests. As such, while a court must consider the preferences of a child twelve or older, a court may only modify a order if it would be in the best interests of the child.7 Interviewing a child does not diminish the court's discretion in determining the child's best interest.8 In determining best interests, the court will consider a child's physical, emotional, social, mental, educational, moral, disciplinary welfare and development. The court will consider the applicable non-exhaustive list of factors established in Holley v. Adams to determine the child's best interests. The factors include but are not limited to:
the desires of the child;
the emotional and physical needs of the child now and in the future;
the emotional and physical danger to the child now and in the future;
the parental abilities of the individuals seeking custody;
the programs available to assist these individuals to promote the best interest of the child;
the plans for the child by these individuals or by the agency seeking custody;
the stability of the home or proposed placement;
the acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one; and
any excuse for the acts or omissions of the parent.9
Modification of a custody order because of a child's preference will involve many factors. Presenting such a case before a court is seldom an easy task. Whether initiating this type of case or defending it, use of a skilled lawyer to bring all points of consideration to the court's attention would be best. If you need legal assistance because your child expresses a desire to modify a current custody order, contact our firm to find out how we can assist you.
Author's Information: Attorney Tracey A. Beecher is a family law practitioner. She represents clients with divorce, child support, child custody, property division in relation to divorce proceedings, and child protective services cases. She appears in courts within Brazoria, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller counties.
Legal Disclaimer: Each person's situation and circumstances are unique. As such, this article is given to provide general information only. It is not legal advice nor is it intended as a substitute for legal counsel. Should the reader need legal advice or counsel, it is appropriate to seek the assistance of a licensed attorney.
1 See Texas Family Code 156.101 (a)(2)
2 Texas Family Code 153.009(a)
4 Id. at (c)
5 Texas Family Code 153.009 (a)
6 Id. at (b)
7 Texas Family Code 156.101(a)
8 Texas Family Code 153.009 (c)
9 Holley v. Adams, 544 S.W. 2d 367 (Tex. 1976)