Originally published by Evan Hochschild.
One of the most common requests that I will field from a new client with the
Law Office of Bryan Fagan is to have their child be able to be
interviewed by the judge in the event that determining where their child will live
primarily is an issue of their case. The thought beyond the request is
usually that our client has confidence that their child is going to voice
their opinion that he or she would like to live with our client primarily.
Once this is done, the judge will announce that the case has concluded
and then we can all go home. A neat and tidy end to a
child custody or
divorce case, right?
Not so fast. Although the above scenario is theoretically neat and tidy
the actual manner in which a judge interviews a child about their preference
in living with mom or dad does not go quite like the above example. Whether
you have heard from friends or family members about the possibility of
your child speaking to the judge or have been introduced to the subject
by reading the opening paragraph to this blog post, the fact remains that
this is an area of the law in Texas
family law that has a great deal of nuance to discuss. I would like to take the opportunity
to discuss the factors that lead to a child being able to speak to a judge
about their preference on with which parent he or she would like to live
with primarily as well as the ultimate effect of their doing so.
What is the basis for a judge interviewing a child?
The
Texas Family Code addresses this situation by allowing for the interview of a child in the
judge’s chambers (office) to determine the preference of the child
as to which parent he or she would like to reside primarily with. The
law doesn’t state that only this question can be addressed, but
others such as
possession,
access and
visitation can be discussed at the judge’s discretion.
At the request of you or the opposing party, if your child is over the
age of twelve the judge must conduct an interview in his or her chambers.
If your child is under the age of twelve then it is up to the judge as
to whether or not the interview will take place. Finally, if a request
is not made of the judge to interview the child, in the form of a
Motion to Confer, it is almost certain that no court would interview the child under any
circumstances.
Can anyone besides my spouse and I request that the judge interview my child?
On occasion an
amicus attorney is appointed to a divorce or child custody case. The amicus attorney acts
as the eyes and ears of the court when court is not in session. He or
she will conduct interviews of yourself and your spouse (or ex spouse)
and will report back to the judge regarding the home life each parent
offers as well as any other factors deemed important for your case in
particular.
Who can be in the room during the interview?
The judge has free reign to allow any attorney involved with the case in
their chambers during the interview. By the same token, the judge may
decide not to allow anyone in the room during the interview and instead
choose to conduct the interview in private.
How much weight will a judge give to the child’s preference as to
where he or she lives primarily?
Ultimately the judge has the final say in any matter relating to where
the child lives or any other decision regarding the child. What needs
to be considered by the judge is what is in the child’s
best interests. There are many factors outside of what your child wants to do that the
judge needs to consider. Obviously, your child is just that- a child,
and their opinion on what he or she wants to do should be listened to
but should not be given the most weight above and beyond the totality
of your case and its circumstances.
The judge will look at the age of your child as well as their perception
as to how mature the child is. A younger child who exhibits maturity in
their answers and persona may be just as likely to impress the judge as
an older child who isn’t as composed or mature. If your intent is
to have the court interview your child my suggestion would not be to coach
the child in any respect. You can almost bet on the fact that your judge
will ask your child if either parent spoke to him or her prior to the
interview to discuss answers or anything having to do with the case.
Is the judge interviewing your child a good idea or bad idea?
Obviously a great deal depends on the specific circumstances of your case.
However, if you think that having your child speak to the judge directly
about where he or she wants to live primarily will wrap your case up with
a nice bow I can almost assure you that will not be the case. First of
all, a judge is not a therapist and most likely will not enjoy interviewing
your child. The judge has a tough job in making a decision about custody,
possession, access,
child support, etc. and interviewing the child has never seemed to help make that job
easier. Your attorney will be able to help guide you in this subject but
from my experience getting your child involved in the divorce or child
custody case may not have the end result that you anticipated at the beginning
of your case.
Contact the Law Office of Bryan Fagan for a free family law consultation
If you have any questions about your child potentially speaking to a judge
or any other subject in family law please do not hesitate to
contact the
Law Office of Bryan Fagan. A
consultation with a licensed family law attorney is only a phone call away and meetings
are available six days a week.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
from Texas Bar Today http://ift.tt/2hE1gI5
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