Archive for June, 2016


The Texas Family Code provides that children 12 and over can communicate directly to a judge relating to his/her preference on where they want to live.

However, the judge ultimately decides whether it is in the child’s best interest to change the primary residence of the child based on his/her preference.

A number of factors have been found in Texas courts to not be in the best interest to change the residence of the child, despite an expressed preference:

  1. Child gets into fight with custodial parent relating to reasonable and rational rules of the home.
  2. Child has more freedom to be at home alone, go out on weekends, or be in a relationship with another person.
  3. Child wants to leave the home because they get into disagreement with a sibling.
  4. Child has alcohol or drug problem and wants to leave the home to enable continued drug use.

A number of factors have been found in Texas courts to be in the best interest to change the residence of the child, along with the expressed preference:

  1. Grades suffer and no action is taken by custodial parent.
  2. Child has been previously alienated from other non-custodial parent and would benefit from change of residence.
  3. Child has half siblings or step-siblings that the child wishes to bond with at non-custodial parent’s home.
  4. Custodial parent is not active in the school and extracurricular activities of the child.

It benefits a parent wishing to have custody of a child, 12 and over to  specifically reference in a motion to modify custody (with evidence) to back up why the change in primary residence is in the best interest of the child.

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Child custody issues impact many families, but many parents may not understand how Texas courts make child custody decisions. Courts may evaluate each parent’s capacity to care for the child under the circumstances, but the focus of their decision isn’t on the parents so much as on the child. In general, child custody decisions are based on a legal standard known as “the best interests of the child.” To arrive at the best interests of the child, courts will consider a variety of factors.
Under “the best interests of the child” standard, Texas courts must consider what actions, orders and services will best benefit the child. It is important to keep in mind that the child’s well-being and safety will, at all times, be a guiding consideration.

It is considered important that timely and permanent decisions regarding child custody be made. Factors to consider when determining the best interests of the child are noted by law in Texas but courts are also encouraged to consider all relevant factors. Factors that will be considered include a parent’s capacity to adequately provide food, clothing, medical care and a safe environment for the child. The mental and physical health of the child’s parents will also be evaluated when making a child custody determination.

Often in child custody disputes, parents can get caught up in fighting each other and lose focus on the child’s needs. The best interests of the child standard help keeps all parties involved in a child custody situation focused on arriving at an outcome that offers the greatest benefit to the child. Understanding how it is determined, and what role it plays in child custody decisions, can help parents remain focused, along with the courts, on their child’s health and safety.

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