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A Child Who Wishes to Determine Guardianship

During a divorce involving children, it’s fairly common for one parent to insist that their child wishes to determine custody matters and is further willing to speak with the judge about it. The question is: can a child make decisions regarding custody during a divorce? The simple answer is no… at least not really.

Under Texas law, a child under the age of 12 MAY speak with a judge regarding that child’s custody preferences. But generally, judges in Texas opt not to speak with a child who is under the age of 12. If a party requests that a judge speak with a child who is 12 years or older, Texas code states that the Judge SHALL do so.  While judges in Texas are required to speak with a child 12 years or older if requested by a party to a lawsuit, it is important to note that a child’s preferences communicated to the judge are not a binding or controlling decision. Rather, the judge will take a child’s preference into account along with many other factors when making decisions relating to the custody of the child.

When asking the question as to whether a child in Texas is able to determine custody decisions during a divorce, the answer is no. However, Texas law allows children in some instances to have the ability to speak with a judge regarding their preference. This preference may be one of many factors a judge may consider when making a custody determination, but is by no means a decision that is binding on the Court.

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