Dale A. Burrows Family Law Blog on Lawyers.com

If my ex currently has custody of our child, when the child turns 12, can I get custody?  Or, if we are in a custody battle over our child and the child is years of age or older, can the child sign a form so I get custody?

Many people think when a child who is the subject of a Texas custody Order obtains the age of 12, the child can then decide with which parent he or she shall live. Others believe if they are in a divorce and the child is 12 years old or older, the child determines with which parent they shall reside.  That is simply not our law.  Certainly the child’s desire is a factor but it is not the only factor.  For years our law has provided that a child of 12 or older could file with the Court a designation of which parent the child preferred to reside, but effective September 1, 2009, that is no longer permitted.

If my ex currently has custody of our child, when the child turns 15, can I then get custody?

Again, this is a misconception about our law.  It may be true that in Collin County, Texas there was at least one Judge handling family law matters that had a “rule” when a child turns 15, the child’s decision was conclusive, but that is merely one Judge’s method of making a decision in these type of cases and not necessarily what our statutes provide.

If the child's preference is not the deciding factor, what is?

A child’s preference with which parent the child desires to reside is not now, nor has it ever been, the deciding factor.  The best interest of the child is the deciding factor.  Sometimes children wish to reside with a particular parent for all the wrong reasons and it is not in their best interest.  If the Court were bound to follow the child’s preference regardless of what may or may not be in the child’s best interest, we could end up with some very dangerous situations wherein children are unnecessarily exposed to harm.  Our statutes do not constrain the Court in such a fashion.

This is not to say the child’s desire is of no consequence, because it is.  However, it is not the only thing that makes the decision.  A totality of the circumstances must be examined before the child’s best interest can properly be determined.  For this reason, the legislature amended the statute to remove a child’s designation and provided other means for the child’s wishes to become known to the Court.

If you are contemplating a divorce or have a divorce pending and you are seeking custody of your child or children, contact the Lewisville divorce law firm of Dale A. Burrows that we may discuss your options and assist you in obtaining your goal.  If your child or children are under a custody order wherein your “ex” has custody and you wish to change that, then I urge you to contact my law firm to discuss in greater detail whether filing to obtain custody is the correct course of action.  We look forward to meeting with you to discuss all your legal options.

This article was provided by Dale A. Burrows, divorce attorney in Lewisville at 783 N. Denton Tap Road, Coppell, TX 75019.