Changes to The Texas Family Code Amend a Child’s Right to Choose
by James L. Nowlin, P.C.
On September 1, 2009, several changes to the Texas Family Code were legislated. One of the more notable changes was to Section 153.008 of the Texas Family Code which eliminated the option of a child’s filing a written preference as to which parent with whom to live. The 81st Texas Legislature has repealed this section. Unless the case goes to jury trial, Section 153.009 requires the court to interview a child in judge’s chambers to determine which parent’s residence would be best for rearing the child.
Prior to this legislative change, children 12 years of age and older could sign a document of preference which would be filed with the court. Though this request was subject to the approval of the court, it carried substantial weight in the court’s decision as to which parent would be named the conservator with the right to designate the child’s primary residence. In the course of a divorce or modification of parent child relationship, having the child submit such a preference was significantly easier and perhaps less stressful than the other remedies.
The question of a child’s right to choose his or her residence is a contentious and emotional issue. On one hand, it seems obvious that the court should consider the opinion of a preteen (age 12) or teenager whose lifestyle and future is being determined. On the other hand, the legislature was concerned that children of all ages, especially younger ones, lack the ability to determine what is in their best interest and may be subject to parental coercion and/or fear of parental alienation. The interview in chambers allows the judge to better evaluate the child’s preference and thus guides the judge to a better outcome. In reaction to the repeal of Section 153.008, most judges have formulated a careful procedure by which the child may be interviewed.
A prudent attorney will know the procedures to apply for the court’s conference with the child and will advise the client as to the best approach for seeking the child’s residence with him or her.A knowledgeable attorney will also know the basic method of the judge’s procedure in interviewing the child, thus assisting the child in making that preference clear in a comfortable way.
If you are facing a custody trial or have questions about how this change and others may affect your family, please contact a Texas attorney with experience and a thorough knowledge of family law matters, including the new enactments of September 1, 2009.