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Barbara L. Jouette, Attorney, P.C.
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Does a child’s preference matter in custody disputes?

Under Texas law, a court may consider a child’s preference for custody only if the child is at least 12 years old. A child younger than 12 is considered to not be mature enough to express a reasonable and independent preference as to custody issues. The older the child is, the more weight the court gives to the child’s preference.

In order to express his or her wishes, the child does not necessarily have to testify in court. By request of one or both parents or by the court’s own motion, the judge can interview the child in private. This private interview is known as an in camera interview. Generally, it is held in the judge’s chambers. The judge may permit the attorneys or the child’s guardian ad litem to be present. 

The idea behind an in camera interview is that it is less intimidating and scary for the child than testifying in a courtroom. Essentially, the interview is an opportunity for the judge to speak informally with the child in order to get a good sense of what the child wants in terms of custody and visitation. The judge will assess the child’s credibility and maturity level. The judge then determines what amount of weight to give the child’s preferences.

Remember that the child’s preference is only one of a number of factors courts consider in deciding child custody disputes. The standard that courts use in determining custody and visitation rights is the "best interests of the child" standard. A Texas statute provides a list of factors that courts must consider under this standard. Other factors include the parents’ ability to put the child’s needs ahead of their own, the geographical proximity of the parents’ homes, and the parents’ willingness to encourage and accept the child’s relationship with the other parent.

With so many factors to consider, child custody disputes can be complicated. If you are dealing with a custody dispute, you may find it helpful to speak with a family law attorney. 

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