For parents fighting in court over custody issues, the feeling that the court hasn't heard directly from their child can be incredibly frustrating. However, in the appropriate circumstances, the judge in a custody case can meet with the child and find out what the child wants.
The most common way judges get information in custody cases is through witness testimony. However, a judge will rarely find out what a child wants through the child's testimony. Judges generally do not allow children to testify as a witness during a child custody case. This makes sense for so many reasons, the most important of which is sparing children the trauma of coming into court and testifying in a case where both the children's parents are fighting each other. In reality, would any parent want their child subject to cross examination from the opposing side's attorney? So this leaves the question, how can a judge hear directly from the child?
The most common way for a judge to find out directly from a child what the child wants is through an interview with the child in the judge's chambers. Section 153.009 of the Texas Family Code allows a judge in a non-jury trial or hearing to interview a child in the judge's chambers (a.k.a. the judge's office). The judge can do this if either party requests it, if an amicus requests it or if the court decides on its own. If the child is 12 years or older and the issues in the case are about where the child wants to live or conservatorship, then the court must interview the child in the judge's chambers if either party or an amicus attorney requests it. If the child is younger than 12 years or the issues in the case don't involve conservatorship or where the child will live, then the court can decide whether or not to interview the child in the judge's chambers. Common cases that don't involve conservatorship or where the child lives are about visitation schedules.
During the interview, it's up to the judge who will be allowed in the judge's chambers, but it's important to remember that only the judge will talk to the child. If the attorneys are allowed in, they won't be asking the child any questions and will instead just observe. If the child is 12 years or older, either party or an amicus can request that a record be made of the interview, and that record will become part of the record of the case.
Section 153.009(c) of the Texas Family Code makes it very clear that a judge who's interviewed a child does not have to do what the child wants. The judge is still free to rule based on what the judge believes is in the child's best interest. The purpose of the interview is to give the judge more information. Generally, the closer the child is to 18, the more value the judge will give to the child's opinion, but how much the judge values the child's opinion always depends on the individual judge and the individual child.
If you need to establish, modify or enforce conservatorship and visitation for your child, contact Sugar Land child custody attorney Chikeersha Puvvada at 281-313-5300 or online today to schedule a consultation.