Frequently Asked Questions Regarding Child Custody Cases and a Child’s Preference as to Which Conservator They Want to Live or Primarily Reside

For purposes of this article, “conservator” and “parent” are used interchangeably.

Q: Does a child’s preference eliminate the court’s discretion?

A: No. The decision remains solely in the court’s discretion.

Q: How can a child’s preference be made known to the court?

A: In a nonjury trial or at a hearing if an application is made to the court, the court shall interview in chambers a child 12 years-old or older and may interview in chambers a child under 12 years-old to determine a child’s wishes as to conservatorship or as to the person who shall have the exclusive right to determine the child’s primary residence.

Q: What are other issues for which a judge can interview a child?

A: The child’s wishes for possession, access or any parent-child issue relevant to the case.

Q: Who can be present when a judge is interviewing the child in chambers?

A: The court can allow the attorneys involved in the case to be present at the interview.

Q: Will a court reporter be present at the interview?

A: If a child is at least 12 years-old, the court must, either on its own motion or that of one of the attorney’s involved in the case, make a record of the interview.

Q: Does a child have to be taken out of school for the interview?

A: This is in the judge’s discretion, but subject to the court’s schedule, a judge will try to schedule the interview after school.

Q: Can a child sign an affidavit regarding which parent with whom they prefer to live?

A: No. It is no longer the law that a child can sign an affidavit regarding the child’s preference as to which parent they want to live.