Wednesday, July 3, 2013

Changing custody when a child turns 12 in Texas & some other thoughts on gaining custody

I am often asked the question about changing custody when a child is about to turn 12 years old.

Apparently many people in the State of Texas assume (incorrectly) that something "magical" occurs when a child turns 12 in the State of Texas.

Let me enlighten you.  For many of you, I'm going to "burst" your bubble.  I am also going to try to explain some complex legal concepts very simply.

Please stop listening to your friends and relatives -- unless they are attorneys - they just don't know TX law -- they are 99.9% wrong!

What happened in your parent's divorce might not happen today.  Laws change.  The Texas Family Code is modified every 2 years by the Texas Legislature.

You need to meet with an experienced family law attorney in person to discuss this topic in detail -- don't rely on this short-hand answer to apply to your individual situation -- each family is unique and you need to discuss YOUR particular problem with a specialist in person!

In the State of Texas, a child technically cannot decide where he/she gets to live until he turns 18!

The moment they turn 18, they are considered adults (no longer minor children) and the court ordered visitation no longer applies to them.  If, however, they are still in high school the child support continues.  Therefore, visits might stop, but the parent could still have to pay child support until the 18 yr. old graduates from high school, marries, drops out of school, joins the military or dies.

I don't know where people hear that the child gets to decide where he lives at 12.  This is untrue.  There has never been any such law in the State of Texas.  Several years ago, the child could write a statement of preference about where they wanted to live -- but it was not binding on the judge.  For example, I had a boy that wanted to live with his dad.  It did not happen because the boy and his dad were smoking pot together.  Obviously, the judge did not allow the boy to move into dad's home!

The current Texas Family Code states that the judge can interview the child in chambers after the child turns 12 if one of the parents requests it - no one knows what happens in the judge's chambers.  This request "boomeranged" on one mom who had hand-written notes for her kids to read to the judge -- Mom's attorney fell out of her chair when the judge walked out of his chambers with mom's note in his hand -- the case was settled quickly with mom giving dad primary custody of the children.  Most judges do not like to interview children because it takes a lot of mine and it is difficult to schedule so that the child does not miss school.

In order for the non-custodial parent to try to gain primary custody, the burden is on that parent to prove why changing custody is a good idea.  This is a tough hurdle to jump.  Why should a judge move a child that is doing well in school?  If the current parent is providing a safe, happy home and the child is well adjusted then why move a child?  The burden is on non-custodial parent to show that the move would be in the child's best interests.

The term "best interests" is NOT defined in the State of Texas.  Each individual judge determines what "best interests" mean to that particular judge.  So you need to hire an attorney that knows what the judge defines as "best interests" in his/her court.

I often explain to people that winning a family law case is never won on one fact.  It is like building a brick wall.  Each fact is a "brick".  You need a pile of bricks to win a case.  Judges like brick walls.  They like to see a series of events and a pattern of acts that show bad parenting and/or good parenting.  They like to see a series of witnesses that support your evidence. Counselors, teachers make great witnesses because their primary concern is for the child.  They are impartial witnesses that usually tell the truth.

In family law cases, a lot of testimony tends to be hearsay - which is usually inadmissible. Therefore.  You need an attorney that can weave a tapestry to help the get get a full picture of the family dynamic.  Practicing family law is not just knowing the law, it is taking the law and the facts of the case and weaving it into something that YOUR particular judge will hear.  Each judge has their "buttons" that get them interested in this case.  They might be a former school teacher.  They might be a former counselor.  They might be a step-parent.  That is why it is so important to select an attorney that you "connect" with.  That is why I suggest that you go to the courthouse and watch attorneys in action.  Watch how the judge reacts to them.  I don't care if the attorney wears a $1,000 suit & drives a Lexus.  I want an attorney that the judge respects -- it might be the attorney in the $200 suit driving the 10 yr. old Civic.

Lastly, remember when you are interviewing attorneys be sure to ask a lot of questions to determine if you are a good fit.  I recommend that you ask questions like -- will you be able to talk to the attorney or will you only talk to his assistant? If you are going to be working with his legal assistant, ask to meet that person and determine if you like the person.

What are their office hours?  What if you have an emergency at night or on the week-end, will they call you back or do you have to wait until their usual business hours?

If an attorney says that your case is a "slam dunk" beware - I don't think that there are any "slam dunk" cases in family law.

I also would not hire an attorney that claims they will 100% of their cases -- is getting a registered sex offender, drug addict primary custody a "win" for the minor children?  What do they consider a "win"? Does it mean that they got paid all their legal fees? Some attorneys only care about winning & don't consider the long term effect of a broken home on the children.

Lastly, remember a fancy,big office with lots of employees has high over-head and your legal fees help pay the rent and salaries.  Be sure to hire an attorney that you can afford - if you can only afford a Civic then don't look at Cadillacs.  Shop around for an attorney - fees can vary dramatically.  The best free website that I know of is --


  1. I remember after my parents divorce having the option to change households. Something that really was interesting was that I never really wanted to change because I was use to the environment that I was in. That being said, there definitely are some children that would rather stay with one parent than the other. This information is great for anyone that is going through a divorce and wants a little additional information. Thank you for sharing.

  2. When I was in my early 30's my parents divorced after being married over 42 years. It was a very difficult period for my sister and me. I think the grandkids handled it better than we did. But, eventually, everything worked out great for all involved.

    1. I am glad I came across your post, my son's father has him under the impression that when he turn's 12 year's old that he will no longer have to abide by the court order's and come to my home during my visit's. Thank you

  3. Thanks for nice posting it is very informative and such kind information.

  4. I am glad I came across this, the father has told our son that at the age of 12 he will not have to continue his court ordered visit's with me and think's when our son turn's 12, he can just keep him out of my life!

  5. Highly energetic blog, I liked that a lot. Will there be a part 2?
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  6. My parents are divorced and I'm living with my dad and step mom . I'm not saying don't write anymore,but don't be so harsh . I've wanted to live with my mom for 7 years,and i much rather would have been told by someone less "mean".