Texas Law on Children's Preference in Custody Cases: At What Age?

Understanding Texas Law on Children’s Preferences in Custody Cases

In the emotionally charged arena of child custody disputes, the preference of the child involved is a factor that may influence the court’s decision. Texas law provides specific guidelines for how, when, and at what age a child’s preference can be considered in custody cases. In this article, we delve into the complexities of Texas law regarding this sensitive subject and offer insights into its practical application.

The Significance of a Child’s Preference

While a child’s preference is not the sole determinant in custody matters, it can be an influential element in the court’s decision-making process. The primary consideration for the court remains the best interests of the child, which encompasses various factors including emotional ties, stability, and the child’s overall well-being.

Age and Maturity: The Texas Perspective

Texas Family Code Section 153.009 provides that a child 12 years of age or older may express to the court their preference regarding which parent they prefer to live with. However, it is important to note that this expression of preference does not equate to a determinative right to choose. The court retains discretion to weigh this preference against other factors in determining what serves the best interest of the child.

For children under 12, while there is no statutory provision for them to express their preference on the record in a similar manner, judges may sometimes consider their thoughts if they find them mature enough to articulate reasonable preferences. However, this practice is less formal and less common than with older children.

How Preference Is Considered in Court

The manner in which a child’s preference is considered by the court can vary. Typically, for children 12 years or older, a private interview with the judge may be requested so that the child can express their wishes without the pressure of a courtroom setting. This interview is called an 'in camera' interview and ensures privacy and protection for the child from potential parental influence or coercion.

In some cases, if deemed appropriate by the court, a guardian ad litem or custody evaluator might be appointed to communicate the child's preferences along with their observations and recommendations regarding custody arrangements.

Cases Where Preference May Not Sway Decisions

There are situations where a child's preference might carry less weight or be disregarded altogether. If there is evidence that one parent has manipulated or unduly influenced the child’s preference, or if fulfilling the child's choice would not align with their best interests due to issues such as abuse, neglect, or substance problems with the preferred parent, then the court may set aside that preference.

Historical References and Notable Cases

Throughout history, courts have evolved in how they consider a child's voice in custody disputes. Historically, young children were often automatically placed with mothers under a tender years doctrine that presumed mothers were inherently better caretakers for small children. Over time, Texas law has shifted towards gender neutrality and an increased emphasis on individual assessment of each parent's ability to serve their child's best interests.

A notable Texas case illustrating these principles is In re C.H.C., where a child’s expressed desire was considered among many factors but did not solely determine custody due to concerns about stability and consistency with one parent.


In conclusion, while children aged 12 and above in Texas can express their preferences regarding living arrangements in custody cases, these expressions are just one aspect of what courts consider when making decisions centered around their best interests. It is crucial for parents to understand that while a child's voice is heard, it does not hold absolute sway over custody outcomes. Legal professionals can offer guidance on how best to navigate these delicate matters within the framework of Texas law.