By Brian S. Loughmiller
Many times I am asked by lay persons: "At what age can a child choose with whom they will primarily reside?" This is an interesting question because it raises the issue whether a child should be allowed to make this decision. The legal answer is found in Section 153.008 of the Texas Family Code which provides that at the age of 10 a child may, by writing filed with the court, indicate a parental preference or choice of managing conservator in Suits Affecting Parent-Child Relationships. The 10 year old age requirement is the result of a 1999 amendment to Section 153.008 reducing the age from 12 to 10. Prior to recodification of the family code, under Section 14.07 (a) the legislature felt the appropriate age was 14 years. If the affidavit is not conclusive, the parent must still prove that the choice is in the best interest of the child.
There is nothing magical about the age of 10, or 12 or for that matter 14. I have met many teenagers whom I felt did not have the requisite maturity to determine what was truly in their best interests. I have been involved in cases where the parent offering the best "toys" won the affidavit battle. I have also seen cases where the child signs an affidavit for both parents. The scenario is as follows: A father has a child sign an affidavit stating: "I choose my father to be my managing conservator. I understand as the managing conservator, he will have the primary custody and care of me." After the lawsuit and affidavit are filed, the mother then asks the child: "why would you sign such a document?" The child might respond that he did not understand the term managing conservator, or he might say: "I still want to live with you, but I want to visit my dad more often." The end result is to place the child in the middle of the parents battle, ensure a social study or psychological evaluation of the parties, and possibly ensure years of therapy in the future.
Another misconception among lay persons about the use of parental preference affidavits is that the effect will be immediate. Although Section 156.006 of the Family Code allows the court to enter a temporary order modifying terms of conservatorship where an affidavit of choice is filed, more often than not the Court will not make such a modification until after final trial. The general rule is that temporary changes in custody should not be made in modification cases barring evidence of an immediate danger to the child. An attorney must make sure that his client or the child understand this reality. In Dallas County, custody cases will typically require a social study even when a parental preference affidavit is filed. Remember, the court must still determine if the choice is in the best interest of the child. If your client or the child does not understand this the child can become further confused about the process, or resentful towards the parent of choice because the child's wishes were not immediately met.
How significant is the parental preference affidavit? Parents often settle custody disputes solely on the strength of the child's affidavit even if the preference may be contrary to the child's best interest. The parental preference affidavit is also significant in a custody modification case. As noted above the parental preference affidavit is the ticket to a temporary forum that previously was not available. Even if the court does not temporarily modify custody, the client will have the ability to present evidence immediately regarding the basis for the modification and possibly set the stage for the final trial.
The family law practitioner should keep in mind other methods to present the child's wishes without the parental preference affidavit. Section 153.009 requires a judge to confer with a child in chambers on the motion of a party if the child is 10 years of age or older. A motion to confer may be filed without an affidavit. The conference provides a vehicle for the child to make his or her wishes known to the court outside the presence of the parents, hopefully decreasing the potential for conflict between the parents and the child. An attorney ad litem may also be appointed to represent the interests of the child under Chapter 107 of the family code. The attorney ad litem will have an opportunity to meet with the child informally. As an advocate for the child, the ad litem is bound by the attorney/client privilege, thus the child will be given a forum to express himself without the fear of reprisal or undue influence by either parent. The child will have a voice if necessary, and will have an opportunity to be silent if desired.
If we are going to represent individuals in child custody cases, as an officer of the court we have an obligation to keep the best interests of the child paramount. Keep in mind that while filing a parental preference affidavit might tactically be the best avenue to take, the affidavit is not always in the child's best interests. Children are often times confused, angry or emotionally distraught over the separation of their parents. Children should be removed from the particular issues relative to divorce, and the legal arena. Too many times, however, children are thrust into the legal battlefield with what appears to be an innocuous one page affidavit stating: "I choose my father/ mother to be my managing conservator. I understand as managing conservator, my father/ mother will have the primary custody and care of me." Is the parental preference affidavit in the best interest of the child? Is it necessary for your case? Ask yourself before you file.
Brian S. Loughmiller is Board Certified by the Texas Board of Legal Specialization in Family Law and Civil Trial. Mr. Loughmiller is also a Fellow in the American Academy of Matrimonial Lawyers and has served on the Academy's Special Interests of Children Committee.