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How children’s custody preferences affect a custody hearing

During a divorce, the spouses and the courts make most of the important decisions, including who the children live with primarily. According to the Family Code statute, when deciding who has primary custody or conservatorship, the courts consider the best interests of the child as the number one factor. 

If children begin to express a preference for who they primarily live with, parents may wonder if their opinion can decide the case. 

Who argues children’s best interests?

In custody evaluations, the court may appoint individuals to protect the children’s best interests. Courts may appoint amicus attorneys, an attorney ad litem or guardian ad litem. 

An amicus attorney, explained by the Texas Statute, is a person appointed to protect the children’s rights. The amicus attorney helps the court make decisions based on the best interests of the children but does not represent the children themselves. He or she gathers evidence and information, attends hearings and makes recommendations to the court. 

An attorney ad litem can serve as the legal advocate for children. He or she may have the dual role of serving as the guardian ad litem as well. A guardian ad litem can review medical records, conduct interviews and write reports based on findings. 

How can children express an opinion to the court?

The attorney ad litem and guardian ad litem, respectively, can ask the children for their preferences. They can advocate for children’s wishes too, but do not have to if they think the children’s preference contradicts their findings. 

In nonjury trials or hearings, the court can interview children 12 years old and older in chambers. Children can explain their wishes regarding conservatorship and primary residence. However, this does not decide the case, and the court still can use full discretion to determine who the children reside with. 

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