The Myth of the Child Interview in Texas Custody Cases

How much voice should a child have in determining the outcome of a Texas custody dispute? If your child is 12 or older, he or she will play a starring role in your Texas custody case in the form of a child interview.

Texas Family Code §153.009 states:

“In a child custody dispute, the court shall interview in chambers a child 12 year of age or older and may interview a child under 12 years of age to determine the child’s wishes as to conservatorship or as to the person who shall have the exclusive right to determine the child’s primary residence… Interviewing a child does not diminish the discretion of the court in determining the best interests of the child.”

Is it plausible to think your teenager is going to walk into an imposing courthouse, sit for tenChild with separated cardboard cutout parents minutes with a total stranger (judge), speak in complete sentences, and choose one of her parents over the other in a custody dispute? If your child does state a preference to live with one parent instead of the other, should he be believed, and should his preference be the last word in the inquiry?

The reliability of any child interview depends on the interplay between these three actors; your child, the adults influencing your child, and, the judge interviewing your child.

To understand more, let’s look at each of these actors, individually.

Your Child: There’s a bit of a “sliding-scale” in the child interview business… the younger the child, the less weight that is given to his or her preference. For instance, if your 12-year-old is interviewed by the court, his statement will be considered as one of many factors in the custody battle. On the other hand, family court judges, give far more weight to the pronouncements of a 16-year-old, and in many cases, her declaration will be controlling.
But, does your child really want to be interviewed by a family court judge and asked to make statements damaging to at least one of her parents?

Of course not.

In the absence of some pathology such as family violence, chronic neglect, or substance abuse, kids love their parents and want to please them. These children know what’s going on and they are stressed by the current of unease and emotion running through both homes. Going to a “throw-down” with a family court judge is traumatic not what they want.

Assuming they make it to the courthouse without incident. your child’s ability to compose himself in the interview is important. How mature and articulate is he? Is he prepared for the interview? In this superficial “speed-date” with the judge, these things matter.
Judges always tell parents not to talk to their children about the case or impending child interview. This amuses me. Let me just ask; when is the last time you went into an important meeting, job interview, or doctor’s appointment without some level of preparation? The typical child interview occurs at the courthouse in the afternoon after a long day at school. Then, child goes downtown to family court for a one on one with a stranger. I suspect most of us adults would struggle with this format.

Parents and Other Manipulators: As I said earlier, judges tell parents not to discuss the Parents arguing at divorce table.pending custody case with their children out of concern that the child’s preference will be influenced by outside pressures. Really? I always say there’s offensive holding on every play in a football game, and there’s manipulation in every custody case… it’s just a matter of degree! Remember that communication is more than verbal; it’s nonverbal, too. Are you communicating something to your child when he sees you crying or posting a devil emoji on your Facebook? Of course. And then, there are the surrogate influencers; grandma and grandpa are especially effective mouthpieces when it comes to a custody fight!

Often child manipulation has been going on for months prior to the filing of a custody case. Courts ordering parents to not discuss custody with their child is like you draining your bathtub before the hurricane hits. By the time your child is interviewed, his perception of reality and truth may have been whitewashed by a parent with ulterior motives.

The Judge: Some family court judges are just better with kids than others. The good ones possess the training, experience, or innate skill necessary to establish a rapport with your child and draw her comfortably into a conversation about her living arrangements. In contrast, other judges have a way of shutting kids down into something closer to an interrogation, leading them to respond with monosyllabic answers and no elaboration.
Finally, judges, like the rest of us, perceive things through the lens of their own experiences, attitudes and biases. Because family law attorneys are rarely permitted to be present during these child interviews, we do not know the extent to which a child interview is slanted by these human factors.

Is that you, or just a brilliant disguise?

While these interviews have become protocol in custody cases, they are anything but tamper-proof, and the outcomes are of questionable validity. This is not to say we stop talking to children. I think Judges should put a face with a name… especially when making life-changing decisions for children. However, we should place less emphasis on such interviews and to keep them in the proper perspective. After all, these are children … unfinished works and very much dependent on parents to meet their physical and emotional needs.

Gregory L. Housewirth is a an attorney and a Board-Certified Family Law Specialist. He has devoted his career to helping clients through life’s most challenging 

Fort Worth Attorney, Greg Housewirth

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Greg Housewirth, Attorney/Mediator

 

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