Of all the half-truths and misconceptions people have about child custody and divorce cases, probably the one that people seem to believe with the greatest amount of fervor is the one where children of any age get to tell the judge who they want to live with- mom or dad. The judge would listen attentively and go along with the wishes of the child in naming one parent or the other as the primary conservator. I guess the case is over at that point and everyone can go home. 

The reality of the situation does not quite match up with the idea that many people have about how a divorce proceeds in a situation where both parents are attempting to be named as primary managing conservators. While I will certainly agree that this is a hotly contested issue in many family law cases, the truth of the matter is that it is not a given that your child will be able to talk to the judge about their wishes in terms of primary conservatorship. The other factor that we need to think about is whether the judge will even care what your child would have to say if he or she goes into the judge’s chambers to have a conversation. 

What does a court do when it comes to listening to the wishes of a child?

The Texas Family Code states that a child twelve years old or older may speak to the judge about their preferences when it comes to their living situation after the family law case has come to an end. Either their mother or their father would be named as primary conservator. When you, your co-parent, or even the judge wants the child to share their thoughts with the judge, the judge must consider the child’s opinion to a certain degree. The meeting must occur so long as your child is twelve years of age or older. 

Younger children may be able to have their opinions heard by the judge but due to their age, this is not a sure thing. The judge can consider a motion to have a judge come to speak to him or her but the judge does not have to grant the motion and have a conversation with your child. At that point, it is up to the discretion of the court as to whether the child should be able to address the judge directly in private about their wishes as far as where they will live primarily during the year. 

What are the factors a judge will look to when determining child custody issues?

The whole point of going to court is to allow the judge to play a tiebreaker. Ostensibly, you and your spouse would not be able to solve your problems together so you must bring a judge into the equation to make decisions for you. This takes power out of your hands and places it in the hands of a person who does not know you and does not know your children. Nobody is better equipped than you and your spouse to make decisions on the living circumstances of your child. This is true even if the two of you are not necessarily seeing eye to eye on every subject under the sun. 

If a judge does need to intercede into a question on which parent will become the primary conservator of your child, then you should be aware that several factors will be relevant. Every judge in Texas who hears family law cases has the authority to consider all, none, or something in between regarding these factors. On top of that, a judge will have the ability to put varying amounts of weight on each factor based on their preferences. If this sounds a little disconcerting, then you are not alone. It is always a risk to place the fate of your case in the hands of a family court judge. Unfortunately, this is what can happen if you and your spouse/co-parent cannot agree before a trial. 

The age of your children is the first factor that I believe judges consider when determining primary custody issues. Different children at different ages need different things from their parents. A younger child requires more moment-to-moment care than does a teenager. Teenagers require different types of care despite not needing it all the time. This is where a judge must also discern the relative strengths of you and your spouse when it comes to parenting to decide about which of you is better positioned to care for your children at this stage in their lives. 

Fitting into this determination is how both you and your co-parent have taken part in the raising of your children to this point. Like it or not, a judge will largely make decisions about determining the primary conservatorship of your children based on what roles you and your co-parent have filled to this point in their lives. For example, if you have been a stay-at-home parent who has prepared meals, taken the kids to ballgames, and tended to their every need then you will have an advantage in being named primary conservator if your spouse has been a traveling salesman who is away from home six days a week. That doesn’t mean your spouse is a bad parent. Rather, it means that a judge is not apt to rock the applecart and change conservatorship roles if they seemingly have been working out ok. 

What you and your co-parent want to see happen as far as custody will also matter. A judge will not name you the primary conservator of your children if you do not want to be placed in that role. It is a huge responsibility to be the primary conservator of children. Even if you would fill that role well in the eyes of a judge, he or she will not place you in that role unless you are asking for it. When a primary conservatorship is a contested issue then the judge will decide based on these factors. Otherwise, the judge will allow the parent who wants to be the primary conservator to fulfill that role unless it is not in the best interests of the children. 

Communication is a huge issue when it comes to co-parenting. Being able to make sure your co-parent is aware of all the relevant issues facing the children is an important part of being the primary conservator. Being with the kids more throughout the week means that you will know what the kid’s homework schedule is like, if they haven’t been feeling well or if their soccer schedule has changed for this weekend’s games. If a judge has reason to believe that you will not take an active role in communicating those changes to your spouse, then you will struggle to be named as the primary conservator. This is true even if you otherwise would succeed in this role. Promoting your child’s relationship with their other parent is a big part of being an effective primary conservator of your child. 

Related to this will be an analysis performed by the judge that goes to the issue of what your relationship is like with your co-parent at the time of a trial. Judges can determine with quickness whether you and your co-parent can get along with one another. While the two of you don’t have to be best friends with one another it is crucial to your child’s well-being that you be able to work together to solve problems that will inevitably confront him or her. If it seems like the two of you cannot get along at all then this will probably make the judge’s decision into primary conservatorship that much more difficult. 

A more difficult determination for the judge to make is about your child’s relationship with you and your co-parent. A judge will have to rely upon evidence at hand to decide about whose relationship is strong with the kids- yours or your co-parent. If your teenaged child can speak to the judge this should help him or she decide about which parent your child is closer with. Like all the other factors that we have been discussing in today’s blog post, this is not the only factor that a judge will consider but it is important, nonetheless. 

If your child suffers from a mental or physical impairment of some sort, then the judge will consider that impairment as well as which parent is better suited to care for your child in light of that impairment. The parent who has taken your children to more doctor appointments knows how to perform the basic care/maintenance for your child or can better calm your child down after an anxiety attack can position him or herself very well in terms of becoming a primary conservator. Depending upon the extent of these impairments this issue may be of extreme importance to a family court judge. 

If you have never taken care of the children on a primary basis then do not expect a judge to put you in that position after a family law case. The most important thing to a judge is the health and safety of your children. The health and safety of your children are best promoted by a parent who has taken on the role of primary conservator already. What I would not recommend doing is to file divorce and then suddenly transform yourself into Super Parent. Judges can tell when a parent has not fulfilled this role for most of a child’s life only to jump into that role immediately before a divorce. If you plan on asking to become the primary conservator of your child, then you should be ready to show that you have already done so with a great deal of success in your child’s life. 

Who takes the kids to school each morning and makes sure that homework is each of their backpacks? Who knows how to give your children their medicine and can adjust if need be? Who cooks meals? Who knows your kids’ friends and their parents? Who attends parent-teacher conferences with greater regularity? These are questions that a judge will want to know the answer to before deciding about the primary conservatorship of your kids. Do not expect a judge to look favorably upon your case if you have never fulfilled these roles for your child.

The distance between your home and that of your co-parent is important when it comes to naming conservators in a divorce or a child custody case. Many parents choose to live close together after a divorce or child custody case. This can make drop off-pick up that much easier and greatly reduce the stress associated with transition periods during the week. It also means that your child can attend the same school no matter where he or she lives currently. If your child is integrated into their school community through athletics or other extracurriculars but you plan to uproot him and send him to school across town where you plan on moving. 

Another reason why living close to your co-parent is important when it comes to being named as the primary conservator of your children is that your work schedules play a role in this decision, as well. Having a job with flexible hours or even a stay-at-home component will be in your favor since kids often have breaks from school or just need to stay home for whatever reason. While there is nothing wrong with having a work schedule that is set in stone and difficult to deviate from, this is likely not going to be seen as a positive factor if you try to become the primary conservator of your children. Flexibility is key. 

A big question that I receive from clients all the time is whether it is an advantage for you to reside in the same house as the kids grew up in. The thinking is that if you can stay in the family home then you will have an advantage when it comes to being named as primary conservator. There is something to say for the consistency and stability that this kind of arrangement can offer, without a doubt. However, to say that simply staying in the same house as the kids grew up in will give you a leg up in this process may not be true. So many other factors will weigh on a judge that primary conservatorship rarely comes down to whether the kids can sleep in their same bedroom as they had growing up. That’s not to say that it isn’t important at all but these other factors are probably more meaningful, ultimately. 

On the flip side of this discussion is the question of how much your children will need to adjust their lives to their changed living circumstances if you are named as primary conservator. Do your children need to change schools if you are named as primary conservator? What about extracurricular activities? Sports leagues? Friends? Church? These are the sort of considerations that a judge will need to consider strongly. While it is unreasonable to think that your child will not have to make any adjustments in the wake of your family case, it is just as unreasonable to think that he or she will have to change every aspect of their lives to accommodate you and your desires to become a primary conservator. 

Finally, when a judge is asked to sit down with your child to discuss this topic with him or she does not expect the judge to act as a therapist of some sort. You can expect the child to tell the judge about their basic preferences as well as their relationship with both you and your co-parent. The judge will try and play detective and work to understand more about your family because of the meeting. This is a factor that will still be weighed with the other factors that the judge chooses to utilize. 

Any negative behavior that is a part of your past will also be considered. Drug abuse, alcoholism, allowing people into the home that ought not to be there, mental health problems, and other issues will also be considered along with the other factors that we have discussed here today. Do not assume that just because you have a bit of a past as far as any of these subjects are concerned. Treating them with doctor’s care and taking responsibility for your actions matters a whole lot to a judge. Providing proof of your attendance in a twelve-step program can help you show a judge that you take these issues seriously and will place the interests of your children first and foremost in your life. 

Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan

If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are a great way to learn more about the world of Texas family law as well as more about how your family’s circumstances may be impacted by the filing of a divorce or child custody case.