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The Twelfth Birthday

Many Texas children dread their 12th birthday.

Why? Because their divorced or separated parents are expecting them to “choose” a switch in custody. Contrary to what you may hear, no child in Texas has a right to “choose” whom they will be living with following their 12th birthday. However, a child who is 12 or older has a right to express to the Judge whether or not they have a preference, and if they do have a preference, they have a right to tell the judge which parent they prefer. This does not happen in a courtroom, and the child is not put on the witness stand. Instead, after the hearing or trial is completed, and the parents have each put on their evidence about where the child should live, an appointment is set for the child to come in and speak to the Judge. If an attorney has been appointed for the child, that attorney will usually be present. The parents, and the parents’ attorneys are never present.


Contrary to what you may hear, no child in Texas has a right to “choose” whom they will be living with following their 12th birthday.

If one of the parents’ attorneys requests it, a court reporter will be present for the child’s meeting with the Judge. However, most experienced family law judges excuse the court reporter from the room after about two minutes. The judge will then have a private meeting with the child. Neither the parents nor their attorneys will ever hear or read a single word of that private meeting.

It wasn’t always like this. When I first started practicing family law, we routinely saw parents breathlessly awaiting that 12th birthday so that they could deposit the child in front of a notary and instruct them to sign a statement saying that they wanted to change which parent had custody of them. Usually, the other parent only learned what had happened when they were served with the lawsuit, which had the just-turned 12-year-old’s statement attached to the back.

That experience was traumatizing to the child

The law was changed because of the growing mountain of evidence that this experience was traumatizing to the child, and permanently damaged the child’s relationship with either or both parents. Unfortunately, the word on the streets has not kept up with the law. Many parents continue to believe that the magical 12th birthday will rid them of a custody order they hate. These parents have a tendency to groom their 11 year-old children with statements like “After your birthday, you’ll finally get to live with me, and I won’t be so sad all the time.” “After you are 12, I won’t have to pay child support anymore, and I will be able to afford a pool in the backyard for you to use.” “Your [mother/father] has had you for X years already. Don’t you think it’s fair that I should get to have you now?” and even “Don’t you love me as much as you love [mom/dad]?”


Most parents have no idea how their statements are affecting their children.

I have seen cases where children who were subjected to this kind of pressure suddenly started wetting the bed, having nightmares, rapidly lost or gained weight, began failing school, and even started cutting themselves or became suicidal. Most parents have no idea how their statements are affecting their children. The more your child loves you, the more damaging those types of statements are to them. If you feel like your child is in an unhealthy situation, visit with a family law attorney without discussing it with your child at all. It might be that a custody change is in order. But the decision to seek that order is on your shoulders, and the decision to make that change is on the judge’s shoulders. Do NOT try to make your child carry that burden.

At what age can a child pick who they live with in Texas? EIGHTEEN.

April 25, 2020

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This information pertains only to the state of Texas and not to any other state. This post or any other information found on this site does not constitute legal advice. This information is provided as general information only. These posts do not create an attorney-client relationship. Your own situation may differ from cases described here. Please seek counsel with a family law attorney before taking any legal action. (This is a law firm, you had to know there would be a legal disclaimer somewhere!)

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