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“Mom, I want to live with Dad”- A Mother’s Problem

March 10, 2014

“Does my child get to pick who she wants to live with when she is 12?” I get that a lot. The answer is “yes and no.” I know, I’m a big help.

The Texas Family Code allows a child to be interviewed by the judge in chambers so that he or she can express her wishes, but that does not mean he or she is the decider.

This is a mother’s problem. Fathers don’t worry about this near as much as mothers do. Mothers feel that when their children “live” with dad, that the world must think they are a terrible mother. Think about it. People wonder, “How did she lose her children?” or “what did she do?” If a mother “loses custody,” then she must have been arrested or getting treatment. When a child decides that they would prefer to live primarily with dad, mom does not lose custody. She actually practically gets the same amount of non-school time, weekends, and a long period in the summer.

At the risk of losing my reader’s attention, here is the specific statute allowing a child to be interviewed.

Texas Family Code § 153.009.

(a) In a nonjury trial or at a hearing, on the application of a party, the amicus attorney, or the attorney ad litem for the child, the court shall interview in chambers a child 12 years of age or older and may interview in chambers a child under 12 years of age 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. The court may also interview child in chambers on the court’s own motion for a purpose specified by this subsection.

(b) In a nonjury trial or at a hearing, on the application of a party, the amicus attorney, or the attorney ad litem for the child or on the court’s own motion, the 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.

(c) Interviewing a child does not diminish the discretion of the court in determining the best interests of the child.

(d) (f) (omitted by author to save attention spans)

If you haven’t stopped paying attention or gone to another article, hopefully I can get you back.

Since everyone knows children need meaningful relationships with both parents, let’s not make this a statement on motherhood. Be informed that when a child wants to “live” with dad, it means he or she wants to be with him more. Since when is it a bad thing for children to want to be with a parent? Sometimes children need one parent more than the other during certain times of their lives. If you and your spouse get along, then most likely your child will never have to be interviewed by the judge. If you can agree that the child should spend more time with the other parent, then crisis is averted.

Yes, if a Court determines that the child should live with the other parent, it could have child support implications. But, if your reason to fight your child’s wishes to live with the other parent is because of child support, you need to re-consider the fight.

Obviously, there are other fact patters worthy of the fight. Let’s say the child gets away with smoking pot or cutting school when he or she is with dad. I’m sure the child will tell the Court all about why dad is better, but fighting that makes sense.

In conclusion, a court must interview a child who is 12 years old or other to hear who they would select as the parent with the right to determine the primary residence and may interview a child to hear their take on possession and access or other issues, but it does not mean that the judge will turn around and order who or what the child selected. It does not mean that the child is in charge. Conservatorship, visitation, parental rights and obligations depend on the best interest of the child. The best interest of the child depend upon countless factors, one of which is the child’s wishes.

It’s important, as a mother, to know the difference between your child genuinely needing their father and a situation where your child wants to go clubbing with dad. Be kind to the mothers who are emotionally evolved and can support their child in wanting to be with dad more. Even if he lives with a homewrecker and her evil children.

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3 Comments
  1. I think this was a very well written article. A custody transfer can cause heartbreak for a mother.
    In my own case my ex got custody of my sons when they were 14 and 16 and it appears that the only reason why he wanted custody was because he wanted to sue me for child support.
    He was in arrears over $ 10,000.00 when he petitioned for custody and got it.
    I have proposed a law to Senator Krause’s office which would prevent this from happening again. I think it would be wise to not only examine the motivation of the children’s desire to be with their dad but also the motivation of the dad to be with their children.
    In my case the motivation from my ex appears to be his greed and selfishness.
    My sons were played like pawns in his pursuit of materialistic pleasures and they both have said that they did not enjoy living with him. My youngest one even told me that he thought about running away.
    It may be wise for you to write from both sides of the fence next time. Although your writing is quite good your side of the fence is filled with manure and very little personal experience.

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  1. Going Back to Court Over the Kids | Family Law and Divorce in Texas

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