In a divorce involving children, determining custody rights (referred to as “conservatorship” in Texas) can often be one of the most emotionally-challenging issues involved. Typically, both parents want to be able to spend as much time with their children as possible, and they both want to have a say in the important decisions that come up during their children’s lives.

In determining conservatorship, the parents’ desires matter. The primary focus in all conservatorship matters is the best interests of the child, and from each parent’s ability and willingness to put their children’s needs first to practical issues such as transportation and work schedules, what is best for a couple’s children will inevitably depend – at least to a certain extent – upon the parents’ wants and needs.

But, what about the couple’s children? Do their desires factor into conservatorship decisions as well?

The Child’s Preference in Texas Conservatorship Matters

In determining whether a child’s preference can play a role in determining possessory conservatorship (physical custody), the first factor is the child’s age. In Texas, the law establishes a threshold age of 12. If a child is under the age of 12, the Texas courts will not consider his or her preferences in establishing the parents’ rights of possessory conservatorship.

If a child is over the age of 12, then the child’s preference with regard his or her primary residence can be a factor in the conservatorship determination. However, it is important to clarify that the child’s preference will not be determinative. Rather, it is just one of a number of factors the Texas courts will consider in awarding conservatorship, which include:

  • Whether the child’s needs will benefit from appointing joint conservators (joint or shared custody);
  • Each parent’s ability to give first priority to the child’s welfare and reach shared decisions in the child’s best interests;
  • Whether each parent can encourage and accept a positive relationship between the child and his or her other parent;
  • Whether both parents assisted in raising the child prior to the divorce;
  • The parents’ geographical proximity;
  • “If the child is 12 years of age or older, the child’s preference, if any, regarding the person to have the exclusive right to designate the primary residence of the child;” and
  • Any other relevant factors.

Deciding whether and to what extent to weigh a child’s desires regarding parental custody can be a very sensitive issue. Whether you and your spouse are able to work out a parenting plan or you need to go to court to establish conservatorship, it is important to consider both: (i) whether the child is able to express a rational opinion, and (ii) the psychological impact that choosing one parent over another can have on a young child.

In court, either parent can ask the judge to interview a child to determine his or her preferences, and either parent can also request that a record of the interview be entered into the record in their divorce. The judge or the child’s attorney ad litem can initiate an interview as well. For parents who are negotiating a marital settlement agreement and parenting plan, determining whether to consider a child’s preferences and how to understand what those preferences are both require careful consideration.

Speak with a Child Custody Lawyer at Nordhaus Walpole, PLLC

If you are considering a divorce and would like to better understand the conservatorship aspects involved, the McKinney family lawyers at Nordhaus Walpole, PLLC are here to help. For a free, confidential consultation, call (214) 726-1450 or contact us online today.