Is your child capable of deciding with whom he or she wants to live after your divorce? In Texas, the law states that a child who is 12 years old or older can make their opinions and desires known to the judge deciding custody. In fact, the judge is required to take the child’s wants into consideration. Does this mean your 12-year-old child can simply state the parent he or she wants to live with, and the matter will be settled? Not necessarily.

A judge is required to consider the entirety of the circumstances. Your child’s desire may tip the scales in the judge’s final decision, but his or her desires will not be the only (or the most important) deciding factor. Read on to understand the factors a judge must take into consideration when parents do not agree on child custody.

The Interview

In a child custody dispute, the judge is required to conduct an interview with a child 12 years of age or older to determine the child’s wishes. This interview is typically held in the judge’s private office. Either party can request a court reporter be present to record the interview.

The judge discusses the child’s desires for where he or she would like to live, the child’s desires for visitation, and any other issues involved in the custody suit. The judge tries to understand the reason behind the child’s preference. Has the child been bribed to choose one parent? Is the child choosing one parent because the rules are more lax at that house?

A good judge can establish a rapport with the child so that the underlying reasons of a child’s choice can fit into the overall scope of the situation. The judge takes many factors into consideration when making a final decision on child custody.


As you know, a lot changes from year to year as children grow. A 12-year-old isn’t as aware of situations in the home as a 17-year-old may be. A younger child may not understand the long-term consequences of living with one parent over the other. Because of this, courts tend to weigh the opinion of an older child more heavily than a younger child. In some cases, the wishes of an older child can be the deciding factor in the custody decision.

Influence of Parents

Parents are instructed to not sway their children in one direction or another when it comes to custody wishes, and judges are trained to look for signs that a child has been manipulated, bribed, or even threatened to choose one parent over the other. Because of this, it’s important to be proactive. Talk with your child custody lawyer at the beginning of the divorce to get an understanding of what you should and should not do or say in the presence of your child.

The Opinions of Others

Sometimes, when making child custody arrangements, a judge may seek the opinions of others involved in your child’s life. It’s possible for a judge to take into consideration the opinions of your child’s therapist, teachers, friends, neighbors, and other family members.

How Do Custody Arrangements Work If Your Child Is Younger Than 12?

If your child is younger than 12, you can still ask that his or her opinion be considered in the child custody decision. A parent can ask the judge to interview the child, but the opinion of a young child will not be weighted as heavily, and more importantly, the judge is not required to interview a child under 12.  In other words, under the Family Code, judges have discretion to decide whether to interview a child under 12 whereas they are required to interview a child 12 or older if one parent files a motion requesting such an interview. You can also ask for a custody evaluation by a psychologist or hire an amicus attorney for your child. A counselor can also be called to testify in court as to what the child desires.

The Whole Picture

If your child is 12 or older, his or her wishes will be an influence in the judge’s final child custody decision, but they will not be the sole influence. If your child is younger than 12, it is up to the judge to decide whether or not your child’s wishes should be considered. In addition to the child’s desires, the judge will consider your child’s immediate and future physical and emotional needs, any emotional danger to your child, the parenting abilities of each parent, the plans of each parent, the stability of each home, and other relevant considerations.

Child custody is too important to take lightly. Your child’s future happiness is largely dependent on the child custody arrangements that a judge sets. Make sure you have an experienced child custody lawyer on your side who can properly evaluate your child custody case and take the needed steps to ensure the best child custody arrangement for your child in the end. Call Ben Carrasco for a consultation today at (512) 489-9820 or contact him online.

About the Author
Ben Carrasco is a highly skilled family law attorney based in Austin, Texas, known for his extensive expertise in family law and business litigation. While his primary focus is family law, Ben brings a wealth of experience in litigating diverse business disputes, ranging from breach of contract and collections to business torts, fraud, and real estate matters. In his family law practice, Ben navigates all aspects of the field, including divorce, child custody, support, property division, and more, offering clients expert guidance throughout the litigation process. His legal journey began in complex commercial litigation, initially with a global law firm and later with a prominent Austin-based firm. However, driven by a desire to make a direct impact on people's lives and embrace the human element of the law, Ben transitioned to family law, a decision that has proven to be deeply rewarding. A proud Austin native with roots in California, Ben completed his undergraduate studies at the University of California, Berkeley, before earning his law degree at Stanford Law School, where he excelled in legal writing and served as an associate editor of the Stanford Law and Policy Review.