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Ask a Divorce Attorney: Does a Child Choose Which Parent to Live With in a Texas Custody Battle?

Determining child custody is one of the most contentious points in any divorce. Some children may have a preference for the parent they wish to live with. However, Texas has a very firm stance on determining which parent will have sole custodianship or conservatorship of a child. A divorce attorney can give you more information about how child custody is determined.

Ask a Divorce Attorney: Does a Child Choose Which Parent to Live With in a Texas Custody Battle?

When you consult with a divorce attorney in Sugar Land TX, one of your first questions may be about how the family court will determine child custody. For families that have older children, the question of whether the child can choose which parent to live with is important. However, in the state of Texas, children are not allowed to simply choose which parent they want to live with.

That said, if the child is 12 years or older, the court will take into account the wishes of the child. The wishes of the child are one of many factors a family court judge will examine before awarding sole or joint custodianship to parents.

How Does the Court Weigh the Child’s Wishes?

Compared to the other factors the court may examine, the wishes of the child do not have significant weight. For example, in a situation where one parent is unable to offer financial, physical, or emotional support to the child, the child’s wish to live with that parent may not carry any weight. On the other hand, if both parents have equal resources to provide for the needs of the child, the wishes of the child may be used to determine sole custodianship.

Other Factors That May Affect Custodianship

First and foremost, the family court will place the child with a parent who can provide for the best interests of the child. Specifically, the physical and emotional well-being of the child is paramount. While financial support can be supplemented with child support, the court places the most value on a parent who is an active participant in the child’s day-to-day life.

Furthermore, there may be certain circumstances related to the health and wellness of a child that will influence which parent is granted conservatorship. For example, a disabled child or a child with special health needs will benefit most from the care of a parent who can devote time and attention to the child. The court will generally award custody to the parent who is the primary caretaker of the child.

When Can You Ask for Primary Custody To Be Changed?

Child custody arrangements are not always set in stone. In Texas, there is a one-year cooling-off before child custody arrangements can be modified by the court. The one-year cooling-off period is designed to grant stability to the child and allow for the family to adjust to the new custody arrangement.

That said, modifying the child custody arrangement is common if there are geographical restrictions or significant changes in the health of the child. Furthermore, parents may find that joint conservatorship is a better arrangement for the well-being of the child.

Who Can Modify Child Custody?

As a rule, both parents can file a motion to modify primary custody. However, if the parent filing the motion is not the custodial parent, then the parent with current custody of the child must agree to the modification. The exception to this rule is if the child’s current environment is a danger to the child’s emotional development or physical health.

For example, if the parent with primary custodianship allowed the child to be in the possession of another person for six months, the noncustodial parent may request a modification of the child custody agreement. However, if the primary custodian of the child is deployed on active military duty and the child is in the care of another person who is approved by the court for six months, this rule does not apply.

How Do Modification Suits Work?

Modification suits are legal motions that must be approved by the family court. A divorce lawyer will file a petition to modify the child custody arrangement with a declaration in support of changing primary custody. This petition will include facts that are supported with documentation to convince the judge to modify conservatorship. There will likely be a hearing before the modification is granted.

What Are Types of Custody in Texas?

Most parents try for sole custodianship or sole managing conservatorship, which allows the primary custodian to make most decisions about the child. Joint managing conservatorship allows both parents to collaborate on decisions about the child, although one parent may still be required to pay child support.

Child custody battles can be intense. However, even if the child is over the age of 12, the wishes of the child may not change the court’s decision about which parent is granted primary conservatorship. Modifications to the child custody agreement can be made at least one year after the first agreement is declared by the court.


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