As children get older, many believe they should have the right to make certain decisions about their lives. For children of divorce, choosing which parent they get to live with is frequently one of those decisions. This leaves both children and parents wondering: How old does a child have to be to choose which parent to live with?
In most states, the preference of an older child will be considered when determining the primary residence of a child, but the age a child is allowed to weigh in does vary from state to state. In addition, a child’s preference is just one of several factors a judge will evaluate when determining where a child will live. At the end of the day, judges may look at preference but they will always consider what is in the best interest of a child.
So, can a 15 year old choose which parent to live with? Not necessarily.
How different states handle preference and when can a child choose who to live with
Since our family law attorneys are licensed to practice law in the state of Texas, we’ll take a deeper dive into how the Lone Star State views a child’s age and preference later in this post. However, it’s interesting that the question of what age can a child choose which parent to live with is handled differently depending on the state. At the same time, judges in all states tend to put the best interest of the child first, regardless of a child’s preference.
According to an analysis of child custody preference laws performed by Custody X Change, Georgia is the only state in the U.S. that says “yes” to the question: can a child choose which parent to live with? That being said, a child must be age 14 or older in Georgia to choose who will take physical custody of them, and a judge still needs to approve the request. Georgia also allows children as young as 11 to express their preference to a judge, though the child’s primary residence will still be up to the judge’s discretion.
At what age can a child decide which parent to live with in other states? Of the remaining states, Custody X Change found that 13 states do not have any statutes that require a judge to consider when can a child decide which parent to live with for their primary residence. Laws vary for the other states (and the District of Columbia) regarding what age a child can express their preference—and under what circumstances—but age 14 is the most common.
At what age can you decide which parent to live with if you are a child in Texas?
There used to be a provision in the Texas Family Code that said if a child had a preference, the child could sign an affidavit stating which parent they wanted to reside with. Texas legislation has evolved since then, partially because children could easily be pressured by a parent to sign an affidavit that reflects the parent’s preference, not the child’s.
According to the updated statute in Texas Family Code Sec. 153.009, the court shall interview a child 12 years of age or older in chambers if the request is made in a SAPCR (suit affecting the parent child relationship) or custody battle during or after divorce. As for children under 12 years of age, the court may interview the child in chambers but whether or not they do is up to the discretion of the judge. These interviews in chambers are only allowed in nonjury trials and hearings.
Important things to know about allowing kids to weigh in on custody and visitation in Texas
As noted above, the court shall interview a 12 or older and may interview a child under the age of 12 for the purposes of defining who the primary parent will be. With respect to possession and access—say the question is what is the legal age child can decide if want to see parent or at what age can a child decide if they want to visit the other parent—those guidelines are suggested.
The Texas Family Code is clear that the child’s preference is one component considered when deciding where the child is going to live, while the best interest of the child is the other key component. The challenge many judges face is determining how much weight the court should give to each of those components.
For example, say you have a 12-year-old who says, “I want to live with mom.” There’s a best interest standard and a preference standard to consider. If the child wants to live with mom because she’s more lenient with rules and buys the child anything he or she wants, depending on the circumstances, living with mom may not be in the best interest of the child.
Just because a child has a preference regarding which parent should have primary physical custody of them, that isn’t enough. The court will want to peel back the layers of the onion in order to determine best interest. They will look at things like the child’s schooling, how long they’ve lived with the other parent and the stability of each parent, among other factors.
The courts generally give more weight to older kids with a preference but they also don’t want to unnecessarily disrupt a child’s environment. On the other hand, the courts don’t want to keep the child in an environment that they’re not comfortable with just because one parent wants it that way. The preference of a child who demonstrates they are mature, trustworthy and able to make good decisions, generally has a strong bearing on the court’s decision.
Why preference interviews tend to occur during custody modification requests in Texas
The preference of a child is one of the few exceptions that parents have at their disposal that relieves them of the need to file an affidavit showing material and substantial changes have occurred that merit a custody modification. That’s not to say a child’s preference won’t be considered during an original divorce or custody case. It’s just more common for the issue of preference to come up during a modification.
It is the one area where you can say, “Well, I don’t have all these material and substantial facts, but I’ve got a child who is 12 and he or she wants to come live with me now.” The child’s preference may get you in the door for the modification, and again, the court shall interview a child age 12 or older to get more insight.
Sometimes it’s best to try things out on a temporary basis
As kids get older, many think they know what’s best for them, even though most parents know that isn’t always the case. While things may go great over at moms over the summer, the reality of mom becoming the primary caregiver may not look so peachy once that reality comes to fruition. The child might find mom, in this case, isn’t very stable, doesn’t get him to activities on time and is never around when he needs help with his homework. In fact, the child may even find the relationship with mom sours, compared to the fun times they had over summer vacation.
If your child is adamant about living with the other parent, you may want to explore the options. In cases like these, we often recommend parents get orders on a temporary basis to test the waters and figure out what will be in the best interest of the child moving forward. During this temporary period, we may ask for a social study to be done and/or get a counselor involved to find out what’s really going on with the child. Coaching is a common problem we see in these situations, and parental alienation might be an issue.
The one thing you don’t want to do is let your child drive the boat and be their own disciplinarian. You don’t want them “taking the wheel” and saying, “Hey, I want my cell phone today, and dad, if you don’t get it for me, I’m just going to go to mom’s house, and she’s going to give it to me.” When you do that, you change the org chart for the parent-child relationship, which can be very dangerous.
We also see cases where the child decides to live with dad or mom because they’ve spent substantial years with the other parent. The kid says, “Hey, I lived with dad for all these years, so I’ll live with mom now.” Or vice versa. There may be no rhyme or reason to it. In some cases, the child may simply be a product of fairness who wants to give mom and dad equal time.
Some of our favorite clients are the moms who have had primary custody for 10 years and all of a sudden, they say, “Hey, my child just wants to do this. I don’t think it’s necessarily best, but the child needs to see that.” That’s a very practical approach, because as kids get older, even if they’re only 12, 13 or 14 years old, they need to get to the point where they are able to make informed decisions that impact their future.
Have questions regarding at what age can a child decide which parent to live with in Texas?
If you live in North Texas, the experienced Fort Worth and Dallas family law attorneys at the Sisemore Law Firm are here to help. We’ll review the facts of your case and answer questions you have regarding what age can a child choose which parent to live with in Texas and explain under what circumstances your child’s preference may be considered. To schedule a confidential case review with a family lawyer at our firm, call our office at (817) 336-4444 or connect with us online.