Melanie K. Morgan Family Law Blog on Lawyers.com

"I heard that once the child is twelve, she can choose whether she wants to live with me or with him." 

"My son just turned twelve, and he says he wants to live with me now, and not his mom.  So how do we do that?"

"You can't make me!  I'll just go live with Dad!"

This is one of the most persistent myths in Texas family law.  I hear it all the time from potential clients, and that last quote, unfortunately, came from my own teenager.  It never was accurate, and now the Texas Legislature has eliminated the "affidavit of preference" altogether.

The previous version of the Family Code provided that a child age twelve or older might file an "affidavit of preference" with the court.  Section 153.008 provided:

"A child 12 years of age or older may file with the court in writing the name of the person who is the child's preference to have the exclusive right to designate the primary residence of the child, subject to the approval of the court."

The judge could then take that information into account when deciding disputes over conservatorship and possession.  Note that the child could not determine "custody," - parents could still be joint managing conservators, with equal time of possession.  One parent would just have the right to designate the child's primary residence.  This provision had been in effect since 1999, when the age was raised from 10 to 12.

Unfortunately, what the courts and family law practitioners found was happenning in practice was that parents were filing "dueling affidavits," both saying that the child preferred to live with them.  Or, parents were offering children incentives to live with them - "Say you want to live with me and I'll buy you a car."  And of course some unscrupulous parents were trying to change the child's primary residence to avoid paying child support.

Feeling that this pressure on children was inappropriate, the Legislature repealed Section 153.008 altogether, effective September 1, 2009.  If appropriate, a court may still interview a child in chambers under Section 153.009.

So hopefully this myth, never accurate, may now be laid to rest completely.  Ideally, questions of conservatorship and possession are decided by agreement of the parties;  failing that, they are decided by the court, with the child's best interests being the primary consideration. 

And I can tell my teenager that she's stuck with me, like it or not.