Modifications of Texas Orders

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WHEN YOUR CHILD WANTS TO LIVE WITH YOU

So, your child is 12 years old or older and they approach you to ask if they can live primarily with you. What do you do? First, ask questions. Why do they want to change their current living arrangement? Have they considered how it might impact their friendships and relationships with other family members? Also, if the change occurs – more questions. Will there be a change in schools? Doctors? Extra-curricular activities? Consider taking the child to a family therapist. This allows the child to have a neutral party to discuss the request with and to document the wishes and desires of the child. Note: This therapist may be a favorable witness at the hearing before the court.

The Family Code requires that the Court look at this change in two parts. One – does the child want to primarily reside with one parent over the other? Two – is this change in the child’s best interest?
TWO PART TEST:

  • The Texas Family Code states that a judge must interview a child in chambers if either parent requests them to. The court will visit with the child as to their desire to live primarily with one parent or another.
  • Best Interest of the child is the other deciding factor when the Court is making these determinations. Note that the older the child, the more heavily the Court will weigh their desires.

HOW IT WORKS
Once you file for the modification, the Court will set the matter for a hearing. At the hearing, the court will interview the child and take testimony of the parents and any relevant witnesses.

The Interview In Chambers

The interview normally happens with the child in chambers. With a few exceptions, it is usually just the Judge and the child. The judge is normally cognizant of what a very stressful position the child is in during this interview. With that in mind, the court may try to alleviate this stress by appointing an Amicus attorney for the child to be the voice for the child in Court. If the case is more complex (i.e., the child is being coached, etc.) the Court may appoint a child custody evaluator to look into the circumstances between the parents, interview the child, and report in writing and through testimony to the Court all observations, findings and recommendations.

The Determination Of Best Interest

he court will hear all of the testimony and determine what they believe to be in the best interest of the child. Remember that the court will determine best interest in conjunction with their election to live with one parent over the other. Relevant factors might include:

  • Is the child mature enough to make this election?
  • What effect will this change have on the child and parents?
  • Will change effect academics?
  • Will change effect family dynamics; for example, siblings?
  • How are the parties co-parenting?

A FEW THINGS TO KEEP IN MIND

  • The cost of the Amicus attorney or custody evaluation does add additional expense to litigation. It is generally ordered to be split 50/50 by the parties, but depending on the incomes of the parties, the cost can be ordered to be shared in varying proportions by the Court.
  • If a request/motion for judge to interview the child is filed by a party for a child that is twelve years of age or older, the Texas Family Code requires that it is mandatory for the judge to do so. It is at the judge’s discretion if child is under age of twelve. Parents should seriously take into consideration the position such puts their child into and consider other alternatives.

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