when can a child choose which parent to live with in Texas?

This is a very common question and one which is HIGHLY misunderstood.  The Texas Family Code section that deals with a child being able to choose a parent to live with is found in §153.009.  This is the new statute and repeals the old law found in §153.008.

The old Texas statute stated that a child 12 years of age or older could file with the Court in writing the name of the parent who the child would choose to have the right to determine where they lived, subject to the approval of the court.  This DID NOT mean that they could choose which parent they wanted to live with.  It meant that they could let their preference be known to the court and the court would decide.  This is a common misconception.  The choice was simply evidence to be considered with all the other evidence.

As I mentioned above, however, this Texas law has been repealed.  What ended up happening is that each parent would get the child to sign the paper to choose them, putting them squarely in the middle of the litigation.

The new Texas law still lets children have a voice or choose, but in a different format.  The new Texas law (§153.009) allows a party (a parent) to request the judge to talk with the child.  If the child is over 12 years old, the judge has to meet with the child.  If the child is under 12, then the judge may meet with the child but is not required to do so.  The new law allows the child to have a say so on visitation with a parent as well, if the judge wishes to hear this evidence, not just which parent chooses where they live.

As stated earlier though, this interview is just evidence the court can use to make a decision.  The court is not required to follow the child’s wishes.

I hope this makes the issue of when a child can choose which parent to live with in Texas a little bit clearer.

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60 Responses to when can a child choose which parent to live with in Texas?

  1. Krystalia Hall February 13, 2017 at 4:04 pm #

    Hi im 15 and have been living with my mother in her hometown since I was 7 and I hated it. She recently let me come stay with my fathers mother for the rest of the school year in my home town. I really love it here and want to live here but my father is in prison and gets out in 3 months and my mother would flip if she found out. Could my grandmother have temporary custody until my father gets out? (My mother gave my grandmother temporary custodianship but says she can come get me whenever she wants and I never want to see her again)

  2. christian claycomb August 7, 2017 at 1:06 pm #

    i am 12 years old about to turn thirteen and i live with my mom in dallas but my dad is 3 hours away in houston and i want to live with him . i love my mom but i want to live with my dad . i just want to go to court and let them decide who i live with i see my dad on different occasions like my birthday and every other holiday .she doesnt give him a chance i just want to stay in houston with my dad,cousin and grand parents

    Christian Claycomb

  3. christian claycomb August 7, 2017 at 1:09 pm #

    i am twelve about to turn thirteen and i love my mom but i want to live with my dad i see him every summer and with him every other holiday. i would love to stay with him pls respond

  4. Kelly Stephen Smith November 17, 2017 at 7:41 am #

    Hello my name is Dorothy I have a serious question my daughters are fixing to be 12 years old, their biological father has not been in their life quite as much as he should have been as far as visitation rights I’ve offered him for his standard possession order and he has usually asked if he can switch weekends or holidays to the best of hisAdvantage , my girls feel as if they are not a Priority to him and they are both active in extracurricular activities that take place on weekends a lot And he refuses to take them to these extracurricular activities at no cost to him because we me and my husband pay for their extracurricular activities now the girls fixing to be 12 Feel as if he chooses to go do other things on his weekends as have dates with other women and go to bars and of the girls stay with his mother sometimes. My question being is when they turn 12 is it an option for them to be able to say I do not want to go over there for my visitation all the time just when they feel that he really is time to spend time with them? Also we live in Texas So how would I go about getting this resolved thank you for any answers you can help me with or anyone you can refer me to

  5. Lisa February 27, 2019 at 12:05 pm #

    Do you reply to these inquires? i was reading your article and noticed a child reaching out. It would be sad to know he is sad and no one has communicated with him….

  6. Chris Schmiedeke February 27, 2019 at 12:09 pm #

    There is no easy answer to that question. It is his time and I guess he can do with it what he wants. To answer your questions specifically, there is not a provision in the Texas Family Code that references a child being able to “choose” anything with regard to visitation. They can choose who they want to live with, but not about visitation.

  7. Chris Schmiedeke February 27, 2019 at 12:11 pm #

    Christian, I have moved all my info to my new website (http://www.chrislawyer.com) and don’t check this site much anymore. Obviously. These are questions that should be discussed with your parents as they are the ones that would have to request the court to fix it.

  8. Chris Schmiedeke February 27, 2019 at 12:13 pm #

    Thanks for comment Lisa. I do not use this blog any more, do no I do not typically see or respond to inquiries on here. I am moving things to my new website chrislawyer.com . The problem with the internet is that nothing ever goes away…

  9. Paula Williams February 24, 2020 at 7:54 pm #

    My grandson is 11 and he wants to live with me his mom’s mother because he doesn’t want to be with her because he feels mistreated by her boyfriend is there anything I can do?

  10. Chris Schmiedeke February 25, 2020 at 9:09 am #

    Possibly. You might have a case for seeking custody depending on the facts of the case. You need to contact an attorney and discuss your options.

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