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As I mentioned above, however, this Texas law has been repealed.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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58 Responses to when can a child choose which parent to live with in Texas?

  1. Joe Castillo June 30, 2011 at 12:17 pm #

    I have a 15 year old son whom has been unhappy with living with his mother for the past 3 years now. We are a family of 8 and pockets are always tight. How would one go about making such a request to the Court?

    Thank you in advance for your prompt attention to this request.

    With kindest regards,
    Joe Castillo

  2. Chris Schmiedeke June 30, 2011 at 1:46 pm #

    You would have to file a petition to modify the prior order with the court that issued the prior order.

  3. joni August 5, 2011 at 5:52 pm #

    how long does filing a petition to modify generally take? We would like him to start school here on time, 8/22. Is that something that is a foolish goal?

  4. Elizabeth Judd August 8, 2011 at 10:01 am #

    In the state of Texas can a child choose to live with guardians other than their parents who are not blood related? If so, at what age would a child be allowed to make such a request?

  5. Janice Faulk August 13, 2011 at 9:35 am #

    My two grandchildren, age 13 and 11, have said they want to live with their mother in Scotland even though my son has custody here in Texas. When can their desires come into play? Can they be forced to stay with their father, especially when the mother has history of drug abuse? Thank you.

  6. Lehnna Arteaga June 11, 2012 at 12:59 pm #

    I have a sister whose 9 years old she’s been telling my mom that she’s tired of living by herself at home when her dad is at work he stopped sending her with the babysister, not only that she comes and tells my mom and me that the babysitters daughter would pinch her and his ex-girlfriend would make nasty comments and would hit her. Ok now my mom isn’t able to pay child support because she has bills, rent, grocery shopping, gas, and a 50,000 medical bill from surgery to pay and she ends up with now money now she’s getting sent to court to see what is the deal that she hasn’t paid. Even though my mom is going through a tough time when my sister turns the legal age to decide what parent to live will she be able to have any percent chance the my mother will have the custody of my sister? Another question he hasn’t done what he was supposed to do is change his schedule from work to have time with my sister because all he cares is having money and getting that child support money too. He’s been making my mom take care of her every week when he is not following on what the papers say and makes her drive 45min to his job and yet that same day he calls night saying that he needs her back by the next day he leaves her at home all day he goes in at work by 7am and gets out by 11pm. My other question is what can we do for him to go to court not only that are ilegal immigrants allow to have custody of the child?

  7. Sasha August 2, 2012 at 7:36 am #

    I have two children ages 12 and 7. My twelve year old has expressed interest to live with her father. Currently he and I are awaiting our court date because he is over $25,000 behind in child support. He has since started paying again only since we went to mediation at the attorney general’s office. He makes substantially more money than I do (over four times as much). My question is if one of my children lives with him and the other remains with me, what happens with the child support. I know with two children it is based on 25% but what happens when we both have a child, is he still required to pay some since he makes so much more than I do? Thank you

  8. Sid October 12, 2012 at 7:54 pm #

    My son’s mom agreed for him to live with me since summer. He is currently enrolled in school and is doing great. My question is, why do I still pay her child support when he is living with me? He has been with me for 2 months. She said she was going to cancel child support but she hasn’t and probably won’t. How can I change this? I hate to giver her money when he doesn’t live with her. I have never been late on chile support for the last 13 years.

  9. Natalee Collier October 30, 2012 at 4:29 pm #

    Hello my Name is Natalee and I’m 14 and a long time ago the court gave my grandparents custody of me and now I feel like i need to go live with my real mom. I only get to see her for a little while on the weelend right now I am having trouble in school and at the house, I need to move I love my mom and i wanna live with her thank you.

  10. Kourtney Humphrey November 16, 2012 at 4:42 pm #

    I am a thirteen year old female and I don’t want to live with my mother, but she recenly took me away from my abusive father. Before I lived with my father I lived with my aunt for 9 years and I want to live with her again. How can I make a court order or be able to live with her?

  11. Mary Claire November 29, 2012 at 9:22 pm #

    Hi, what happens when the child turns 16? Does that change the procedure or do they still need to go through the courts.

    My sons are currently 13 and 15 years. Their father has gone overseas and the children are living with their step mother for the next 2 years? The oldest has wanted to come and live with me for over a year now however he is still expected to live with the step mother.

    I do not live in the US so a move to live with me is a very big one.

    Any comments?

    Mary Claire

  12. Jaime December 12, 2012 at 7:29 pm #

    Lehnna Arteaga:

    You should go to CPS or the police immediately.
    That you know this info but do nothing with it is extremely concerning to me.

    Start standing up for the minors who can not.

  13. Camryn Hooker December 28, 2012 at 10:27 pm #

    Thank you for this. But what I would like to know if this also applies for children wanting to live with their grandparents. I am wanting to live with them instead of my mother since my father could never be an option, since he being deceased. It is his parents I am wanting to live with. My age is not being released to the public.

  14. Kris February 24, 2013 at 8:05 pm #

    Are grandparents included in the law can they have the same status as a parent

  15. Chris Schmiedeke February 27, 2013 at 8:07 am #

    They are included in the law and can have same status as a parent in certain situations. Read more of my blogs for further info.

  16. summer April 8, 2013 at 7:28 am #

    i am 15 years old, almost 16. and i don’t like living with my dad. he treats me like i am nothing. i want to live with my mom but he won’t let me. i can’t stand anything he does to me. everyday he comes home and hes in a bad mood and he takes it out on me. i’ve gone as far as hurting myself it hurt me that bad. he drinks way to much. i left one time to go live with my mom and he let me for 7 months. then one day he came and just randomly picked me up, and never took me back home. i’m not happy at all here with him. what do i have to do to go live back with my mom?

  17. Justin April 29, 2013 at 11:55 am #

    i am 15 im having problems at home and i would like to stay with my father

  18. Eddie May 2, 2013 at 7:35 am #

    My child is 11 years old and all his mom and husband is down grade me, hates hearing them do so. He says he would rather live with me but is scared his mom will try and get me in trouble due yo my past problems with the law. His says all his mom and step-father is downgrade. Half the time they wont even let him call. I went and bought him a phone and she grounds him for weeks at time so he can’t call with. I feel if parent act this way children should easily be allowing to choose with parent they wish to live with.

  19. sierra bailey May 28, 2013 at 7:49 pm #

    im almost 12 and i am unhappy with who i live with how would i file this court session and how would i do it without hurting my moms feelings

  20. Michael June 1, 2013 at 11:06 am #

    My daughter is 10 and son is 7. They are both very unhappy living with their mother. The mother does not spend the child support money on the kids, and is always traveling with her new fiance but never takes the kids with her..What can i do to get my kids with me they are very unhappy there??

  21. Marcie Smith June 17, 2013 at 8:48 am #

    My son is 7 and his father is the custodial parent. He is wanting to come live with me. I wanted to talk to his father about allowing him to try the school year with us. However, I am sure he is not going to allow that. What do I need to file in order to allow him to live with me. I know his Dad is hard on him and pushes him, hardly pays attention to him, etc.

  22. cheryl June 17, 2013 at 9:42 am #

    I have a 16 year old son and have been divorced for 8 years. We moved to another state…his father said he would NOT help take care of his son. Could he be ordered to pay child support? I have always been the care taker of my son and I know that he would tell a judge that I am the parent he would choose to live with.

  23. Shelby June 20, 2013 at 7:08 am #

    Thank you for your blogs and insight. My husband and I are about to try to get custody of my 15 year old sister and all of this information has been extremely helpful. Our father is deceased and her mother has abused her mentally and physically. She been around things that most adults have not and it’s nice to know there are options. So thank you again, God Bless.

  24. Amy June 27, 2013 at 8:13 am #

    My daughter just turned 12 and wants to live with her father who moved 6 hours away about a year ago. All her family is here and she has always lived with me and gone to the same school. She is angry at me because there was a period of time for a few months that we argued a lot. I admit I would yell at her and was harsh sometimes over small things. This has gotten much better over the last few months and the arguing is minimal now. I am learning from my mistakes and how to pick my battles. My concern is that she really wants to move with him and he is supportive of that. I am not because her entire life and family are here. She does excellent in school and is a very happy child. How much weight does her desire to move carry with the court if things go that far?

  25. Laura July 24, 2013 at 1:31 pm #

    Hello, I have a stepdaughter(27 yrs old) who has four children. Her first is a girl age 10, she deliberately got pregnant to get married so she could move out and do as she pleased. Well right off the back she started cheating on her husband and two years into the marriage she left him to be with someone else. Well things happened and her husband almost went to prison for a lie she told and so she got custody of her daughter, however she chose not to keep her, instead she left her with her husbands grandmother. This is where she has been for 8 years. Recently she has called me several times telling me how unhappy she is there. She said she feels unloved and unwanted. She is always calling me and is in tears wanting me o go pick her up. I do pick her up when I can but now that she has spoken out and told everyone hat she wants to live with me, it has gotten harder or me to get her. So what am I suppose to do when she keeps asking why she can’t live with me? Is there anyway I can get her? My stepdaughter also has 3 boys with the guy she left her husband for and she just got up and walked away from them, leaving them with a drug dealer, drug addict father, who does not take care of them. I have talked to several lawyers but hey only tell me that I cannot be guaranteed to win them. These attorneys want as much as 5,000.00 but its not a guaranteed win, we can’t pay that much money and not be guaranteed to get them. This father has had CPS called on him but nothing has been done. Please help with some kind of info to help us get these children ages 5,4,3.

  26. Lynn August 10, 2013 at 1:28 am #

    My son just turned thirteen years old. As all teenagers are prone to do, he wishes he was anywhere but here! However, his Dad, (we never married), is pushing for him to go to a public school for his eight grade year. Since my son has been four, he has been attending a private Catholic school that we both agreed upon. Although his father agreed begrudgingly to this school, he knew it was in his best interest to let our child attend. I gave his dad the option of paying the extreme lesser amount of private school verses paying child support. Money has never been a bone of contention for me. I simply have and always will want what is best for my son. If our son’s dad had to pay for child support, he would be paying close to $7500.00/ month verses the five thousand and six hundred and sixty five dollars he is paying per year for our kiddo’s school. When I chose this school for our son, his Dad was not in the picture. It was not until our child was 4 years of age that his dad chose to be part of his life. I did contact the Attorney General in 2004, and we agreed upon joint custody, with myself as the custodial parent. I signed away the over thirty five thousand dollars in back pay that our kids father owed, simply because he was young, and still waiting tables while attending college. Now, I look back, and realize that not only have I done myself a disservice, but most importantly, I have done my son a disservice in the most extreme sense of the word. His father now makes over six hundred thousand dollars a year, and is not paying child support. While money is not the most important thing to me, while we were arguing over private verses public school, I mentioned that our agreement would be moot if our son went to public school. His father responded by threatening me and letting me know that our son is now 13, and can choose whom we wants to live with. While my husband and I make nowhere near the amount of money his father makes, we are happy and comfortable in our lives. I am terrified that his father will try and take this to court. He can afford lawyers and such, that we cannot. My son wants to go to public school and live with his father, as he lives next door to a very wealthy golf community that he, his wife, and my son are all part of. At his father’s house my son is given everything he wants. My husband and I are unable to do that. We are able to give him what he needs, along with love, unfailing attention, support, and also things such as i pads and such that he does not need. Because my son is a teenager, he is unable to see the bigger picture, and I am horribly afraid that I will lose him because of this. He has become immersed in material goods. I am at a loss. If anyone has experience in this, I would love to hear your opinion. Thanks so much for listening!

  27. Vicki August 19, 2013 at 8:17 am #

    My granddaughter who is 12 is having a very hard time dealing with a “new” step-dad. Her mom re-married last year. He is verbally abusive to her and MUST have everything in the house done “his” way. Unfortunately, my daughter supports what he says and my granddaughter, who is a straight A student calls me crying because he has yelled at her again about the bed not being made right or other things that should not really matter. She has been with us all summer… she is an only child so my daughter didn’t want her by herself. Now she insists that she does not want to “go home”. She has seen mom off and on all summer but does not want to live with the step-dad. As grandparents, what rights do we have? Her dad stated he would support her living with us as he is in Lousiana. What do we need to do. We live in Louisiana and her mom is in Texas. I appreciate any guidance you can give. Thanks!

  28. Inez September 1, 2013 at 11:26 am #

    My 11 year old grandson currently lives with his father and his girlfriend. He was awarded custody of the child when he was an infant due to his mother being disabled due to a traumatic brain injury caused in a car wreck.
    My grandson hates living at his father’s house because the girlfriend whips him with a belt, grounds him constantly for made up reasons and generally makes his life a hell. I am 64 years old but in good health. Can my grandson request the court change his custody to his mother, who lives with me, or to me when he turns 12 in a few months? His mother is in a wheel chair, but is able to take reasonable care of her son. I help her with things like laundry and some cooking.

  29. Chris September 9, 2013 at 3:27 pm #

    I have a friend who’s in a verbally abusive relationship. They have been divorced since April and now the ex wants custody of the oldest son because he is 12 and can choose. The son wants to live with his dad but I feel he is being manipulated by him. The husband was never there for the children and my friend is worried that if they choose to allow the 12 year old to move that they will not split up him and his younger brother. What are the chances that they would grant custody to the oldest son’s wishes and would they split up the children? How much of the child’s say goes into the decision?

  30. Ella Ride October 15, 2013 at 11:48 am #

    Hi, i am 13, and i was wondering, wheb can i stop seeing me real mom. My real dad has custody, and i have to see my mom every other weekend, which i do not enjoy. When can i say that i dont want to see her?

  31. Michael Thomas October 21, 2013 at 4:08 am #

    Hi I’m Michael. I am apparently forced to stay with my mom and her rude and down-grading boyfriend. She treats me like I’m a piece of trash and is currently trying to make me forget about my old friends and my girlfriend. She is on my last nerve. My dad on the other hand is the best. Funny, Respectful. The list could go on. I am turning 13 in a few days and I want to file one of these petitions or something else. Anything to live with my Dad. Please help.

    Thanks,
    Michael

  32. Chris Schmiedeke November 14, 2013 at 8:52 am #

    Your dad would have to file something.

  33. cristian November 21, 2013 at 9:06 pm #

    What if the parent he wants to live has been to jail for this and that does that matter?…. Will the court choose the parent that hasn’t been to jail?

  34. Tiffany November 26, 2013 at 10:40 am #

    My step-son is 10 lives with my husband and I for a week and the next week he stays with his mom and step-dad. He has recently told us that his mom and step-dad are looking to buy a house that is about 30 mins or more away from us and his school. My husband and I are listed as his primary residence at the school and have been since his transition in to public school. Our concern is that they will want to relocate him to their new school district out of convenience. While there are custody papers that are years old that list my husband as primary conservator. Are they still valid? What would we need to do to if they are not?

  35. Daniel Fulcher December 7, 2013 at 3:28 pm #

    Hi, i’m 14 years old and have been living with my grandparents for the past 5 years, since day one i have exspressed my want to go back and live with my mother. My mother is 100% capable of taking care of me and providing me with required items, do i have the right to decide whome i want to live with?

  36. Samantha Strader December 30, 2013 at 3:26 pm #

    Hi, Im Samantha, Im 15, and I am currently living with my father and my step mom. My real mom ran off with a younger guy when I was 5 and has started another family since then and has payed no child support, made no phone calls, and has changed her adress numerous time to get away from me and my sisters. I by no means want to live with her. My step mom and my father are planning to divorce, and I so badly want to stay with my step mom, shes treated me like her own daughter and I love her so much. My dad on the other hand rarely pays attention to me, and when he does, he treats me like garbage and punishes me much more harshly than my other sisters. My older sister and younger sister also treat me and our step mom horribly and were both absolutely miserable. But we have been each others support all this time and I dont want to be ripped away from her, and her family loves me and I love them, more than my real family! Terrible, I know, but If you saw the way my real family treats me, then saw how my step moms family treats me, you’d understand. Like I said Im 15, about to turn 16 in June, so heres my question: can I live with my stepmother?

  37. David Goldman January 7, 2014 at 8:04 pm #

    In app. 1999 I was granted as the parent our child lives with due to his mother not sending him to school he averaged missing 3–40 days a year and about the same amount of tardies. She also got arrested with her (ten 17) year old son with over 4 ounces od marijuana in the process of smoking the stuff. She then moved to Florida with the other son to attend college for app. 3 years and has not worked in app. 12 years because she’s drawing disability except for people that will pay for cash. As of now she or the other son are not working andas usual (about once a year) she decides he should live with her-it would increase her income app. $1000 per month from welfare and me paying $500 per month as we used to do it. Can you clarify the laws in a situation like this. She’s told him he could quit school as her other son did in the 8-9th grade. Since he’s lived with me he’s missed 3 days of school 2 of which were to go to Florida for his brothers graduation. He was sick the 1 other day and been tardy once for a doctor apointent. Thanks for any advice, my attorney has died since all this happened.

  38. Jocelyn July 12, 2015 at 1:07 pm #

    Well I’m 14 years old about to be 15 I don’t want to be with My mom she always leaves me at home with my little sisters (13-1 year olds) and my mom and dad already went to court for custody and my mom always threatening me saying she’s going to beat me and calling me names and stuff like that. We came with our dad for the weekend and I don’t want to go back with her . How can my dad get full custody of us?

  39. Vaughn January 2, 2016 at 12:46 am #

    Both parents were granted joint custody. He has primary care, mother paid child support directly to father. Neither parents were aware that mother was possibly suppose to pay to the courts. Was never stated in divorce documents, nor has mother ever received papers or phone calls for her to report payments to such.
    When the kids each turned 12, they moved in with mother. Now they are 17 and 20.
    Neither parent realized they needed to go back to court to change the living situations, and the mother stopped paying child support due to them living with mother.
    Both parties agreed to the changes. Neither dispute how it’s been.
    So what do they need to do legally now, to have their 8 yr. decision hold water, and mother doesn’t face penalties.

  40. Chris Schmiedeke January 4, 2016 at 12:57 pm #

    You will need to contact the Office of the Attorney General Child Support Division. They should be able to get it worked out.

    https://childsupport.oag.state.tx.us/wps/portal/csi

  41. Chris Schmiedeke January 4, 2016 at 12:58 pm #

    Your dad would need to file a lawsuit requesting custody.

  42. Chris Schmiedeke January 4, 2016 at 1:00 pm #

    You have the right to express to the Court your preference as to where you live. Your mother would need to file a lawsuit to gain custody.

  43. ann January 4, 2016 at 11:05 pm #

    My ex husband and I have a joint custody of our 10 year old son but I am the custodial parent. He has remarried and 4 kids with his current wife who has 2 kids from her previous marriage both almost the same age as my son. I remarried, both me and my current husband can’t have kids anymore. I have 2 stepsons and they are on their mid to late twenties which makes my son as the only kid in my household. My ex and his whole family are fixing to move to Oklahoma for a job transfer. My son told me he is wanting to move with them because he will miss the his siblings who are his playmates when he is with his dad. This breaks my heart upon hearing this. My question are: what is the law in Texas when one parent decides to live out of state? Can my son’s request bears strong weight when a judge talks to him or will I still be the custodial parent? Thanks for your reply on this.

  44. ann January 4, 2016 at 11:05 pm #

    My ex husband and I have a joint custody of our 10 year old son but I am the custodial parent. He has remarried and 4 kids with his current wife who has 2 kids from her previous marriage both almost the same age as my son. I remarried, both me and my current husband can’t have kids anymore. I have 2 stepsons and they are on their mid to late twenties which makes my son as the only kid in my household. My ex and his whole family are fixing to move to Oklahoma for a job transfer. My son told me he is wanting to move with them because he will miss the his siblings who are his playmates when he is with his dad. This breaks my heart upon hearing this. My question are: what is the law in Texas when one parent decides to live out of state? Can my son’s request bears strong weight when a judge talks to him or will I still be the custodial parent? Thanks for your reply on this.

  45. Chris Schmiedeke January 5, 2016 at 11:19 am #

    Your child is not old enough to express their wishes as to where they live. That happens at twelve years old. I would need more facts to answer your other questions, but on a cursory glance it doesn’t seem that you should have any problems. Good luck.

  46. Amanda May 31, 2016 at 9:20 am #

    My daughter is 12 and her father just started to come in to her life a few years ago. He never followed the visitation court order and usually just came around at his convenience. Now he is married and wants to go by “the Book” , my daughter is not use to this and wants to decide when she goes and when she does not go to visit him. As her mom I don’t fight her on this because he never has been a 100 % dad with her and she is not small anymore she would rather be with me or her friends and cousins on the weekends, Birthday’s and holidays now. Which in turn upsets him.
    Can he force her to go?

  47. Chris Schmiedeke June 8, 2016 at 9:35 am #

    In short, yes he can. There is a court order. Court orders have to be followed. If there is a problem with the court order (for instance the dad has never visited) then you would need to go to the Court and ask them to modify the order so you are not in violation of the order.

    I suggest you talk to a local attorney and see what they suggest for your area.

  48. Santiago C October 27, 2016 at 6:31 am #

    My Son is 17 , how long it takes to file a modification?

  49. Kristin December 21, 2016 at 9:40 am #

    My ex husband and I have been divorced now 4 years. My child is 13, he has lived with me and his 16 yr old sister for the entire divorce as well prior during previous separations from my ex. In our divorce it states that I shall not relocate outside of 100 miles of the current county. Per the divorce, once my ex retired and is no longer on orders by the US army, the relocation is lifted. He retired 1/2015. I am now moving to Florida from Texas and gave a 60 day notice dated 10/14/2016 in regards to the location I am moving with said child. Rightfully he has 60 days to file a temporary hold on the move, however he did not do so until 2 days following his 60 day. He is now requesting full conservatorship as well as child support from me. He unfortunately has been placed on probation for non payment of child support over the last two years, seldom pays in full and owes back child support totaling over 5 thousand dollars. I also have documentation of several weekends he chose not to have his son throughout the past two years since he has been married. I am in a financial hardship being in Texas without family and or support through steady income. The move will only benefit my child’s quality of life moving closer to family and having my Fiancé income playing a huge factor. Can the courts still deem my ex as the full conservator as well consider myself to pay child support?

  50. Deana January 23, 2017 at 9:28 am #

    How long does it generally take for a modification of custody order in Texas? My daughter’s father had custody of my daughter, but I now have custody and have had custody for almost a year due to my son being molested in her fathers care. I sent my modification of custody paperwork to the Attorney General’s office almost a year ago,, along with all information showing proof that I have custody of my daughter. I was paying child support when my daughters father had custody of her, and the attorney general’s office is still deducting child support from me even though I have custody of my daughter. Why does it take so long? I could be using that extra money for my daughter.

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