Can a 12-year-old decide where he or she wants to live?
This area of Texas Family Law is often misunderstood. Many non-lawyers, and possibly even some lawyers, think that once a child turns 12, he or she gets to decide who will be the “primary parent.” That is simply not true.
Under Texas custody law, one parent or the other usually has the “exclusive right to determine the primary residence of the child” – to most people that means where the child lives.
Once an custody order (or divorce decree containing a custody order) is in place, it is final, unless it is modified. In order to file for a modification of a child custody order, you need to allege certain things.
One of things that can be alleged, in order to ask a court to change the custody order, is that your child is over the age of 12 and that you believe that your child will tell the Judge that he or she wants to switch which parent is “primary.” That alone, however, does not mean that the order will be changed.
Unless the other parent agrees to the change, the fact that a child age 12 or over tells a Judge which parents’ house they prefer does nothing more than give you a right to present evidence on the issue of Best Interest of the Child.
The Best Interest standard is the standard used by courts in making all child custody decisions, including where a child over the age of 12 wants to live, regardless of the child’s desires.
In determining the Best Interest of the Child, courts consider many factors, including:
The child’s emotional and physical needs;
The parenting ability of the conservators or potential conservators;
The plans and outside resources available to persons seeking the modification;
The stability of the homes of the persons seeking the modification; and
The child’s need for stability and the need to prevent constant litigation in child custody cases.
Since custody cases can be very expensive to litigate, it is a good idea to consider all of these factors and get good legal counsel prior to filing a case – even if your child has told you that he or she wants to move.