Divorce is hard for everyone, and the process can become even more emotional or contentious when children are involved. One of the first questions divorcing parents ask our family law attorneys is, “Can a child choose which parent to live with?” It’s understandable that a child might want some input on where they will live or which parent will be their primary caretaker, so this decision should be made with understanding and compassion for the child’s wishes. However, the state also prioritizes the best interests of the child, which might be distinct from the child’s preference.

As such, Texas law is clear about the situations in which a child can have a say in their living arrangements. If you’re having trouble setting a custody arrangement that is in the child’s best interests and aligns with their preferences, one of our Texas child custody lawyers can help.

What Are Texas Laws Regarding Child Custody?

LIttle girl

Photo by Caleb Woods on Unsplash

The Texas Family Code covers statutes regarding divorce, child custody, and child support. It details how child custody is determined in a divorce, including the age at which a child can request input about which parent to live with, which is 12. That being said, this is a request of the child, not a guarantee of a living arrangement. 

Texas law requires parents and minor children to adhere to a legal custody agreement. If the parties cannot work one out on their own, then a Texas family law judge will establish a custody and visitation schedule based on the child’s best interests.

A judge can consider the child’s wishes for which parent they want to live with but will ultimately decide based on a standard called the child’s best interest. Any children in a divorce who are aged 12 and older may privately meet with the family law judge assigned to the divorce in the judge’s chambers. The judge interviews the child and asks a series of questions designed to evaluate the relationship between the child and each parent and what kind of custody arrangement is in the child’s best interest.

What Does “Best Interest of the Child” Mean?

In many families, one parent may be the more permissive parent, while the other may be more of the rule enforcer. It’s natural for a child to want to live with a more permissive parent, but that kind of environment may not be in the child’s best interests.

For example, a teenager may want to live with a parent who works nights or late hours, so they have less supervision. A judge may ask about parents’ work schedules and which parent is the one to enforce curfews or be physically present to supervise the child. So, living in a house with minimal parental supervision may not serve that child’s best interest, even though it is the child’s preference.

A judge may consider which parent has played a more active role in raising the child. One parent may be the one who helps with homework, takes the kid to sports practices or games, or monitors the child’s phone and social media. A judge may see this parent as acting in the child’s best interest, even if the child disagrees.

Judges also look at the safety of the home. A parent who abuses drugs or alcohol or who doesn’t meet the child’s basic needs may not be viewed as acting in the child’s best interests.

How Can I Prove That Living with Me is in My Child’s Best Interest?

Texas family law has specific requirements about what can be presented as evidence before the court. You can’t just show up at the hearing and tell the judge that the other parent doesn’t spend much time with the child or lets them run wild. You and your Texas child custody lawyer will need proof to substantiate your motion for primary custody of the child. This means making a case that living with you is in your child’s best interest.

Some of the ways that a divorce lawyer may establish that your home is the best option for your child could involve showing:

  • Your work schedule showing that you are present to supervise the child
  • A schedule of which activities you take the child to
  • Documentation that you consistently help your child with their homework
  • Statements from your child’s teacher that you are the parent they usually talk to about the child
  • Photos of the two of you together doing both fun things and ordinary daily activities
  • Medical records noting that you’re the primary parent taking the child to the doctor for well-child check-ups and sick visits

The judge will also interview the child and possibly both parents to learn more about the relationship between the child and each parent.

What Happens If My Child Wants to Live with Their Other Parent?

Minor children are required to follow the custody decree until they turn 18 and can make their own decisions as legal adults. If the child is adamant about not wanting to live with you, consider having a conversation with them about why or going to family counseling to get to the root of their reluctance.

However, if your child is truly unhappy and the other parent does not pose a danger to the child (and provides proper supervision and care), then the courts could modify the custody arrangements to give your child more time with the other parent.

This may be a compromise that you and your ex work out together, possibly in mediation or under the guidance of your family law attorney. If both parents agree, then they can petition to modify the custody agreement and submit the revised arrangements to the judge.

Do You Need a Texas Child Custody Lawyer?

Do you need help creating a child custody arrangement or modifying an existing one? The experienced family law attorneys at Balekian Hayes PLLC can help you understand your legal options and possibilities for creating a custody arrangement in the best interests of your child. Contact our offices today for a consultation with a Dallas, Texas divorce lawyer.