CLIENT PAGE
My 12 Year Old Says She’s Moving to Her Dad’s House! Can She Do That?
A look at parental rights.
By Stephen C. Farrar
Based on an increasing number of telephone calls I have received, there
appears to be a public misconception when it comes to the primary
residence of and/or visitation with a child who has reached the age of
12. The purpose of this article is to dispel two general myths that
parents have about the rights of their 12-year-old children.
First, it is important to know what the public policy of the state of
Texas is when it comes to children and what “guidance” the court is
charged with in deciding issues relating to children.
The
Texas Family Code sets out the public policy of the state of Texas and
states in part that “the public policy of this state is to: (1) assure
that children have frequent and continuing contact with parents who have
shown the ability to act in the best interest of the child; and (2)
provide a safe, stable, and nonviolent environment for the child . .
.”1
The Texas Family Code also provides that “the
best interest of the child shall always be the primary consideration of
the court in determining the issues of conservatorship and possession of
and access to the child.”2
The trial courts are
given latitude in determining the best interests of a child3
and the Texas Supreme Court has articulated a non-exhaustive list of
factors that help guide the trial court’s determination of the best
interest of the child.4
Let’s take a look at the two
common myths regarding 12 year olds.
Myth
1: When my child turns 12, he or she can decide which parent to live
with.
The Family Code provides that the court shall interview in chambers a
child 12 years of age or older to determine the child’s wishes as to
conservatorship or as to the person who shall have the exclusive right
to determine the child’s primary residence.5 The code also
states that interviewing the child does not diminish the discretion of
the court in determining the best interests of the
child.6
A plain reading of the statute dispels the myth that the Legislature
has granted the absolute authority to the child to make the
determination where the child will reside and that the child’s
“determination” is binding on the court. The Legislature has instead
chosen to give a child that has reached the age of 12 a voice in the
matter and an avenue to inform the court of the child’s wishes. However,
it is still up to the court to determine what is in the child’s best
interest, and the child’s wishes are only a factor for the court to
consider in making that determination. For example, it’s not hard to
imagine that a child may want to live with the parent who has lax rules
concerning homework, chores, video games, discipline, bed time, etc.,
instead of the parent who makes and enforces rules.
Therefore, while a 12-year-old child has the right to make his or her
wishes regarding where to live known to the court, the child does not
have the ultimate decision.
Myth 2: When my child turns 12, he or she can decide whether
they want to visit with the non-primary parent.
In addition to the authority of the court to interview the child as to
where he or she wants to reside, the Family Code also provides that a
court may interview the child in chambers to determine the child’s
wishes as to possession, access, or any other issue in the suit
affecting the parent-child relationship.7
As previously stated, this authority does not diminish the discretion
of the court in determining the best interests of the child and is not
binding on the court.8
Again, the statute makes it clear that the child’s wishes as to access
(visitation) by the parents is only a factor for the court to consider
in determining the best interest of the child.
Therefore, while a court may listen to the wishes of the child who is
12 years of age regarding visitation with a parent, the decision whether
the child must visit with that parent is up to the court, not the
child.
While all of the above applies in original suits, i.e., a divorce case
or suit affecting the parent-child relationship, it equally applies to,
and the issue most frequently comes up in, a suit for modification of a
prior order. Some parents apparently believe that when their child turns
12, that he or she is automatically entitled to a modification of the
prior orders concerning his or her primary residence or modification of
the visitation schedule by the non-primary parent.
When a child turns 12 and desires to live with the visiting parent and
it has been more than one year since the date of the prior order
establishing conservatorship and possession, the visiting parent may
file for modification of the prior order with a request that the court
interview the child. The Family Code provides grounds for a court to
modify the prior order based on the child’s preference expressed in
chambers as to the person to have the exclusive right to designate the
primary residence of the child and that it is in the best interest of
the child.9 Again, the child’s preference is only a factor,
which does not bind the court. The statute provides that if the court
finds the child’s preference is in his or her best interest, those
grounds will support a modification of the prior order.10
Though beyond the scope of this article, there may be legitimate,
serious reasons that the child does not want to visit with or reside
with the other parent. Some indicators that there is something wrong
with a parent’s home environment may be that the child’s mood changes,
the child becomes fearful and/or anxious when it is time to visit with
the other parent or return home to the primary parent, or there is a
significant change in the child’s demeanor. If that is the case with the
child, it is important to try to find out the root cause(s) of these
issues and determine the nature of the home environment of the other
parent. In such cases, consulting with a qualified family law attorney
will help you to understand your rights, provide valuable resources and
help you reach your goal of protecting your child and his or her best
interests.TBJ
STEPHEN C. FARRAR
is a senior associate attorney with Nunneley Family Law in Hurst. He
can be reached at (817) 485-6431 or stephen@nunneleyfamilylaw.com.
