[T]he most frequent question I get asked is “How did you get full custody as a dad?” Usually followed by “Can a teen change custody and decide who she wants to live with?” or “My son is now 12 years old, he can decide to live with me full time, right?” The short answer to these latter questions is, probably not. Let me explain.
At What Age Can Johnny Decided to Come Live with Me?
This confusion started about 20 years ago when some states started considering a written affidavit from children age 12 or older on who they would like to live with. Problems with this approach showed up almost immediately when it started. As both parents would have an affidavit from their kids stating they wanted to live with them. Thus rendering this process almost obsolete. In Texas, this was repealed and replace with the option that a parent ask a judge, usually through his attorney, to confer with a child over the age of 12 in chambers. See Section 153.009.
However, the problem is still pretty much the same, usually the parent requesting the judge to talk to Sally has pre-talked Sally into telling a judge she wants to live with him. Thus judges now pretty much render this conference low influence into what is the in the best interest of a child.
Thoughts from a Sitting Family Court Judge
This past year, I had the distinct privilege of sitting down with a sitting family court judge (not mine), to discuss this very issue over lunch. Here were some takeaways from that conversation:
* As a judge, she was not a big fan of involving the kids at any age in any custody situation.
* She evaluated the kid’s preference about 10% of the time at age 12 up to about 50% of the time at age 17.
* Custody changes after the final orders are rare and usually only occur when it is in the child’s best interest. Those facts were almost always based on evidence outside of conversations with the child.
* She fully understood that children prefer to live with which ever parent ask for the chamber request. Thus she understood that children usually could not be objective.
* In chambers, the judge always asked “If given the choice to live with both parents would you?” To which they almost always said “Yes,” further nullifying their preference.
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Can a Teen Change Custody and Decide Who She Wants to Live With?
So the “Best Interest of the Child” rules still pretty much stands. Which means there needs to be a substantial reason for a change of custody outside of the fact that Johnny just wants to come live with you. Drug addiction, abuse towards the child, neglect, etc. Reasons based on “My son doesn’t like the way mom parents.” or “Mom tends to be too strict and enforces a routine bedtime.” not only lack merit, it make you, the requesting parent, look pretty stupid in the eyes of the judge.
My Ex tried this exact request when my daughter turned 14. The judge, after talking with my daughter in chambers and getting past rehearsed answers, learned my daughter never gets anywhere on time with her mom, and that her mom doesn’t take her education as a priority. My daughter went on to state that my household is very structured and that she didn’t mind visiting her mom on weekends. Therefore really didn’t wanted to change anything. I am sure that is not the conversation my Ex wanted her to have with the judge. Thus the interview completely backfired and our judge would not consider any custody changes.
How have I Seen Parents Change Custody Successfully?
I’ll share some stories I have witnessed on that question–tomorrow. Stay tune!
What have you seen in regards to children changing who they want to live with? Was it successful? Why?
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