Do Judges Interview Children in Texas Custody Cases?

 If you are a parent in Texas seeking custody of your children in a suit for divorce or modification, you may be interested to know more about the Court’s role in making a decision on this issue.  A judge will consider many factors when ruling on custody, with the most important consideration being the best interest of the children involved in the suit after hearing all the evidence presented by the parties.

One of the aspects in determining a child’s best interest can be the desire or choice of the children themselves. Parents involved in custody cases may request a judge to interview a child and discuss their preference on who they want to live with as well as what visitation they would like with each parent. These interviews are typically conducted in the Judge’s chambers without attorneys or parties being present. But, this is not an option in all custody cases. For example, The Texas Court of Appeals recently affirmed a trial court’s decision to decline to perform an in-chambers interview of a child in a divorce case.

Under Texas law, a judge shall interview any children over 12 years of age to determine their preference as to the parent with whom they wish to primarily reside. In the aforementioned case, a mother of four children had requested that the Court conduct an interview of the oldest child (who was thirteen years old). However, the Court denied her request, asserting she had waived her right to have the child interviewed because she failed to file the requisite motion. At the conclusion of the case, the father was awarded primary custody of the children which prompted the mother to file an appeal, citing the legal requirement in Texas to perform an in-chambers interview of a child older than twelve as she requested. The trial court’s ruling was ultimately upheld by the appellate court, and in doing so, determined that the decision to deny an in-chambers interview of the 13-year old child did not constitute reversible error because the child’s preferences had been adequately presented through other evidence, including the testimony of the child’s therapist and a custody evaluation that was conducted by a social worker during the litigation.

While this case is a bit outside the “norm”, it’s instructive. If you make a proper motion to the Court requesting the Judge to interview your child who is older than twelve, the interview must occur according to Texas law. You can also request the Court to interview children under the age of twelve, but that decision is up to the Judge’s discretion and dependent on facts & circumstances specific to your case.  

In this interview, the Court will take your child’s wishes about their primary residence and visitation arrangements into consideration, but this decision is ultimately up to the Court. Meaning, the Court will not simply “rubber stamp” your child’s expressed preference. Regardless of a child’s age, the Court’s primary consideration in ruling on such matters shall always be “what is in the child’s best interest?”. A child’s preference is only one of many factors the Court may choose to consider.

Going through a disputed custody trial is emotionally difficult for all parties involved, especially the children. You want to ensure that all relevant information is available and properly presented to give the Court the ability to determine the best arrangement for your children. An experienced attorney can help you prepare your case strategy to achieve the most favorable and just result.

If you are searching for someone to represent you in a divorce or modification involving contested custody issues, Jenkins & Kamin, LLP is prepared to serve you. Jenkins & Kamin LLP is one of the most respected family law firms in Texas. The firm is noted for its “team” approach by pairing skilled attorneys, paralegals and other support staff to enhance each client’s experience in difficult life transitions.

In addition to the “team” approach, Jenkins & Kamin, LLP strives to personalize case strategies for each individual client, including identification of every particular legal issue and effective explanation of the law with respect to those issues.  The firm endeavors to achieve a resolution that is appropriate for each client, while aggressively advocating on their behalf when necessary. Having a dedicated and experienced team working with you in any family law matter is of utmost importance to achieve the best result possible.

Jenkins & Kamin LLP represents clients in the following aspects of family law practice: Marital Property Agreements, Divorce, Complex Property Issues, Child Custody & Visitation, Child Support, Parentage, Modifications, Family Law Appeals and Dispute Resolution Alternatives. To learn more about the firm, visit www.jenkinskamin.com or contact one of our offices in the greater Houston area.