Must I Stay or May I Go
by James Giries
In-Chambers Interview of Children in Family Law Cases
Many parents who are divorced or separated from their child’s other parent face the question of whether their child may choose which parent they will reside with primarily. Much misinformation and fear exist regarding the extent to which a child may choose the primary residence. In the minds of many parents or conservators, this question equates to who will be the primary parent or conservator, who will be able to spend more time with the child or who will exercise more control.
Texas Family Code Section 153.009 provides for the interview of a child in chambers to address the child’s desires regarding primary residence. The in-chambers interview may also include the child’s preference as to possession, access or any other issue in the suit affecting the parent-child relationship.
Upon request, the court must conduct an in-chambers interview with respect to a child 12 years of age or older. The interview is discretionary for a child under 12 years of age. TFC § 153.009(a). Absent a request, there is no requirement that the court interview the child or incorporate the child’s desires into its ruling.
Who Can Request an In-Chambers Interview?
Any party to the lawsuit, an amicus attorney and the attorney ad litem for the child may each request an in-chambers interview. The court may also conduct an interview of a child on its own motion. The procedure for requesting the interview of the child in chambers is omitted from the statute and left to the individual court. Generally, a written motion or letter to the court and coordination with the court’s schedule is all that is required.
Non-Jury Trial vs. Jury Trials
The in-chambers interview applies only to non-jury trial cases. For jury trial cases, the court may not interview a child in chambers on any issue on which the parties are entitled to a jury verdict. TFC § 153.009(b). The determination of which joint managing conservator may designate the primary residence of the child is an issue that may be decided by a jury. TFC § 105.002(c).
Who May Be Present at the Interview
The court may permit the attorney for a party, the amicus attorney, the guardian ad litem for the child, or the attorney ad litem for the child to be present during the interview. TFC § 153.009(e). However, the court is not required to permit anyone to be present and may exclude these individuals at its discretion.
Preparation of a Record
A record of the interview can be made and becomes a part of the record in the case. TFC § 153.009(f). The individuals who may request a record also include any party, the amicus attorney, or the attorney ad litem for the child or the court itself.
Weight of the Child’s Preference
Significantly, the child’s stated desires to the court regarding possession, access or other issues does not diminish the court’s discretion in determining the best interest of the child. TFC § 153.009(c). Invariably, the court will weigh the myriad factors to determine the child’s best interests. The weight afforded to the child’s preference is dependent upon the age and maturity of the child and the practicality of the child’s request in light of the circumstances. Thus, it is important to consider judicial temperament regarding the interview itself based on the factors in each case and the experience the court brings to bear to resolve the issues presented.
A child’s preference could previously be submitted in writing to the court during a pending suit as an alternative to the in-chambers interview. This provision allowed for, or perhaps facilitated, “dueling affidavits” in divorce cases and suits affecting the parent-child relationship. In 2009, the Texas Legislature repealed this option. Currently, Section 153.009 is the only statutory mechanism that allows the affected child to communicate the child’s preferences directly to the court.
James Giries is family law attorney focusing on matters including divorce, child custody and property division. He can be reached at James@GiriesLaw.com or by telephone at (972) 516-3844.