A Child's Preference v. The Best Interests Standard

J. Lindsey Short, Jr.

It is a well-settled fact that in family law jurisprudence a child's preferences should be a factor to be considered in custody decisions. The issue becomes the determination as to the weight of the consideration. Correspondingly, a child in Texas has the right to express a preference as to the issue of conservatorship. One such preference is the preference as to who will be appointed the managing conservator. Texas Family Code ¤153.008, Child's Choice of Managing Conservator states:

If the child is 10 years of age or older, the child may, by writing with the court, choose the managing conservator, subject to the approval of the court.

The statute has been amended several times in recent years reducing the age at which a child has the right to state a preference for his managing conservator from 14 to 12 to 10 years old. This reduction of the age of the child has proven to be a subject of much controversy and discussion by the Texas judiciary.

On its face, the statute allows a child over the age of 10 to choose with whom that child wants to live. A court will certainly consider a child's preference in choosing the managing conservator, but as the statute states, the choice is "subject to the approval of the court" (emphasis added). "Approval of the court" has the effect of saying that a court will consider a child's preference when determining the "best interest of the child." The court will receive a child's choice as a part of the evidence which the judge will weigh in determining the appointment of the managing conservator.

Texas courts have held that a child's preference of managing conservator is only one of the many factors that the court will consider in determining the "best interest" of a child. The "best interest of a child" test is clearly stated in the Texas Family Code ¤153.002 as follows:

The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.

The statute itself offers little help in defining what precisely determines the best interest of a child. Texas case law routinely deals with this issue, and yet, courts have not formulated an exact definition of the best interest standard.

The public policy behind ¤¤153.008 and 153.002 appears to be the legislature's attempt to offer guidance but not to bind the court in the determination of its decision as to the appointment of a managing conservator, but rather to provide some guidance in determining what is in the best interest of a child. It is extremely important to highlight the fact that a child's preference is only one factor to be considered by the court, albeit an important one. Although seen as a significant right which a child possesses, a child's written preference for managing conservator will not be considered in a vacuum. It bears repeating that upon careful analysis of Texas cases that a child's preference is only one factor to be considered in deciding what is in the best interest of a child when a court is determining a managing conservator in a custody case. Whether a child's preference is the leading factor is debatable. What is apparent is that judges will generally consider all of the evidence which is available. This would include the circumstances surrounding how a written preference was obtained from the child to determine a managing conservator for the child.

It would seem that the power of a child's preference converges with the totality of the best interest test, but does the former outweigh the latter, or is the former merely a part of the latter? As practitioners, where we are either advising our clients or preparing a case for mediation or trial, the issues that seem most pertinent are 1) how old and also how mature is the child; 2) what weight should a child's preference be given; 3) what is the evidentiary use of such preferences; and 4) what are the circumstances which surround the choice.

Best Interests Standard

Section 153.008 of the Texas Family Code which allows a child 10 years of age or older to state a preference for Managing Conservator must be read in conjunction with ¤153.002 of the Family Code which provides that the "best interest of the child shall always be the primary consideration of the court." The best interest test, as stated in the statute, does not define further nor list any factors or elements for us or the court to determine what is meant by the best interest of child. Best interest has never been clearly nor definitively defined in Texas. The lack of a statutory definition of the best interest test has given Texas courts plenty of leeway in determining what they will use to determine what is in the best interest of a child in a particular custody case. The factors which seem extremely important in one case may seem to be of lesser importance in another.

What all this boils down to is the fact that the best interest standard vests a high level of discretion in judges. The Court in Hogge v. Kimbrow, 631 S.W.2d 603 (Tex. App. Y Beaumont 1982, no writ), considered the definition of the best interest standard. The trial court had refused the mother's tendered instructions of factors to be considered in determining the best interests of the child. The Appellate Court, citing Tex. R. Civ. P. 277, found that the trial court's decision was not error, stating that the trial court has considerable discretion in the submission of definitions and instructions. The Court did not believe that the "best interest the child" was an example of a legal term that has an irregular meaning which is unknown to the layperson. In other words, the best interest standard should be seen as having a plain meaning, even though that plain meaning is a broad one with no precise parameters.

At the time of the preparation of this presentation, Texas case law has not developed a precise definition or list of factors that is either more complete or more instructive than the phrase itself. The closest that a Texas Court has come in the custody/ possession arena to a list is the explanation of factors set forth in the parental rights termination case of Holley v. Adams, 544 S.W.2d 367 (Tex. 1976). The factors to be considered by the Court for the "best interest of a child" test which the Texas Supreme Court in Holley derived include: desires of the child; emotional and physical needs of the child; any emotional or physical danger to the child now and in the future; parenting ability of the person seeking custody; programs available to assist in promoting the best interest; plans for the child; stability of each home; and any acts or omissions of the parent. It is important or significant to note that the "desires" of the child is the first item listed in Holley's factors for the best interest test.

Holley was a case in which one parent was seeking to terminate the parental rights of the other parent. At various times it has been stated that the factors derived in Holley are not appropriate to apply in conservatorship cases. The authors of the Texas Pattern Jury Charges, vol. V (1998) wrote in the comment section to 215.2: "[T]he Committee believes it is inappropriate to apply that list in conservatorship cases." In addition, Holley has not been specifically cited by any appellate court in a nontermination case. Notwithstanding the fact that commentators may say that Holley may not be applicable to a case other than a parental rights termination suit, it can often be seen as a roadmap to the testimony and evidence produced at trial in an effort at providing guidance in a realm void of specific terminology. Holley is the nearest thing Texas courts have in deriving a list of factors for the "best interest of a child" test. Texas courts do not follow any one list of factors or elements to determine a child's best interest, but rather seem to base their individual determinations upon factors which are important or significant to the particular judge as well as upon the facts of the particular case.

The Court of Appeals in Cole v. Cole, 880 S.W.2d 477 (Tex. App.Y Fort Worth 1994, no writ), was very clear when it applied the "best interest of the child" standard as its primary consideration in determining the question of managing conservatorship of a child. In Cole, the Court, looking at the totality of the evidence, did not rule according to the child's preference. This is an extremely important case to bring to the attention of a trial court if your client is facing a choice made by the child for the other parent. This case points out that a trial court can, will, and should exercise a wide latitude of discretion when determining the best interest of a child.

The case was a divorce suit involving the parental choices of the fifteen-year old son who had been living with his father since the parent's separation. The child testified that he wanted to remain living with his father, and the mother also testified that her son preferred to live with his father. The Court's decision was apparently influenced by testimony from the mother that when the father was out of town she discovered the boy having thirty to forty friends over for a party. Additional testimony from the mother revealed that at another time the mother went to the father's house where her son was staying and found two naked strippers asleep in his bed. The trial judge had also interviewed the son in his office Y off the record. There is no record of the conversation.

The appellate court later concluded:

The primary consideration of the court shall always be the best interest of the child. The trial court is given wide latitude in determining the best interest of a minor child for purposes of making a custody award and its judgment will not be disturbed on appeal unless it is shown from the record as a whole that the court abused its discretion. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982)

Cole, at 478. Once again, a Texas court applied the "best interest of a child" standard without any description of the elements the court used in determining that the appointment of the mother as managing conservator would be in the "best interest of the child." What we are left with is an indistinct rule giving trial courts wide latitude in reaching their decision of what is in the best interest of the child. Frankly, an indistinct rule is, in the author's opinion, preferable as it allows a decision to be fact driven but still have parameters for the court.

The Court in Cole held that the trial court had the discretion to decide that the son's preference would not be in his best interest. The case is a classic situation in which the evidence was both legally and factually sufficient to support the court's decision to make the mother managing conservator. Cole at 480.

Ordinarily, Appellate Courts will not disturb a trial court's decision of managing conservator absent an abuse of discretion. Upon appellate review, the district court is given wide latitude in determining the best interest of the child and will be reversed in such cases only when it has abused its discretion. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). "The test for abuse of discretion is whether the trial judge acted without reference to any guiding rules or principles; in other words, whether the act was arbitrary or reasonable" Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) The Court in Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985), stated that it would not reverse for abuse of discretion merely because they disagree with a decision of the district court. Again, assuming that there is no error with regard to this admission or exclusion of evidence, facts drive the case and a preference or choice by a child is, although an important fact, only one such fact.

Trial court's decisions are held in high regard by the appellate courts with respect to the determination of custody issues. The Cole, Gillespie, Worford, and Downer line of cases simply illustrates the power trial courts have in reaching managing conservator decisions.

As the author has stated previously, Texas courts are given wide latitude in determining the best interest of a child. The standard as stated in the statute is itself general and indeterminate, so it is very difficult to identify what interests, facts, or circumstances are the "best". In considering the best interest of children, and further, in trying to formulate a list of factors, the court may consider a myriad of factors including, but not limited to: physical ability and fitness of each parent; mental ability and fitness of each parent; child's age; child's physical and mental health; child's special needs; child's preference; religion; who has been the primary caretaker; adultery and its impact on children; separation of siblings; locale of parents - stability of one home and/ or the relocation of a parent; spousal abuse; child abuse; child's refusal to be with one parent; parent's work schedule; ability of the custodial parent to support the child; the willingness of one parent to foster the child's relationship with the other parent; prior criminal conduct of a parent.

The best interest standard clearly inserts judges into family decision-making and therefore may at times allow judges to impose their own personal values on others. This may be a risk society has to accept when two parents cannot decide on custody issues. It therefore goes without saying that the practitioner as part of the representation of a client become familiar with the trial judge and factors, biases, and values of each trial judge so that a reasoned decision may be made as to whether or not to pay a jury fee in a particular case.

What weight does the child's preference carry in relation to other best interest factors? One can make the argument that the Texas Family Code places greater weight on a child's wishes simply because there is a separate statute addressing the elements of preference and of best interest. Conversely the fact that a separate statute exists allowing for a child's preference in ¤153.008 may merely be the legislature's attempt to allow additional evidence to be considered by the judge. If this is true, this preference may not be any different from that voiced by a child under the age of 10. However, a particular judge may carry a personal belief that a choice should be afforded greater or lesser weight. Similarly, the age of the child who has made a choice may impact the significance to a particular judge. Predictability must then be compromised to allow for the facts which may exist in a particular case.

A Child's Preference

Prior to the Texas Family Code's first enactment in 1973, there was no specific statute which addressed the child's written preference on the issue of managing conservatorship. The pre-family Code case of Brooks v. Brooks, 480 S.W.2d 463, 465 (Tex. Civ. App. Y Eastland 1972, no writ), held that the child's preference was only one of the factors to be considered in determining the "best interest of a child". Even today, case law seems to follow this line of reasoning, although there is now a separate statute which deals with a child's preference.

The "new" Texas Family Code in 1973 at ¤14.07(a) provided:

The best interest of the child shall always be the primary consideration of the court in determining questions of managing conservatorship, possession, and support of and access to the child. If the child is 14 years of age or older, he may, by writing filed with the court, choose the managing conservator, subject to the approval of the court.

With this statute, the state specifically acknowledged the importance of the child's participation and viewpoint in the issue of the choosing of a managing conservator. The 1973 statute highlighted the issue of whether this change could be seen as changing the weight given to children's preferences in managing conservatorship cases. Some would argue that it did, but at least in the context of a modification action, the argument can be made that it did not.

By the enactment of this statute it is clear that the legislature intended to grant children who are age 14 and older some greater control or at least input over the determination of conservatorship than for children who are under 14. The first case to address this change in the law was In the Interest of Galliher, 546 S.W.2d 665 (Tex. Civ. App. Y Beaumont 1977, no writ), which was a non-jury modification of conservatorship trial. Galliher involved a fourteen-year-old child's written preference as to a managing conservator which had been filed with the Court. The father argued that the statute changed prior law, as described in Brooks, supra, which considered a child's preference as one among many factors that the court could consider. The Court's opinion stated that the new law did change prior law regarding preference because it brought into the statutory law the concept of choice by a child over the age of 14 years. However, the Court in Galliher held that the child's preference is "subject always to the discharge of the court's primary obligation of determining what is in the best interest of the child. In no event is such a designation absolute or controlling." Galliher at 667. See also, Addressing the Child's Preferences on Conservatorship and Visitation, Janice L. Green & Lora J. Livingston, 1998 Adv. Fam. L. Again, this is a critical case to cite when dealing with an adversely filed preference.

While there can be little debate that the court usually gives a child's preference serious consideration, it is important reiterate that the court is not bound by the choice and further, that the court is not required to grant the request. Arguably, the Texas legislature by enacting a separate statute for a child's preference as to managing conservator wanted to insure that a child's preference would always be considered as a factor when the court is determining a child's best interest. Without further guidance from the Family Code, we are left with a child preference statute which must be read in conjunction with the indistinct best interest statute.

The Comment to ¤153.008 of the Tex. Fam. Code Ann. (2000) states

In 1999, ¤153.008 was amended to reduce the age for a child to express a preference in managing conservators from age 12 to age 10. Opponents of this amendment assert that a child of 10 years of age will be subject to undue parental pressure in choosing a managing conservator w as contrasted with a 12-year-old. A steady progression of reducing the age of expressing a preference from 14 to 12 and now 10 has occurred over the past several years, albeit in an inconsistent fashion. However, the judge interviewing a child in chambers is mandated at 10

The statute was amended to provide for a preference to be available from age 12 to age 10 during the 1999 Legislative Session. If the lawsuit was filed prior to September 1, 1999, then the age at which a child may choose would remain 12.

Part of the rationale used to support a lowering of these ages is based primarily on other areas of litigation in which children are held accountable for their actions at younger and younger ages. The current feeling among a majority of judges appears to be a disapproval of the legislature's act of reducing the age that a child may file a written preference from 12 to 10 years old. By the date of presentation of this article, it would not surprise this author if the age were again amended to reflect the age of 12. In any event, securing an affidavit from a child under the age of 12 and the facts and circumstances surrounding the execution of the choice will probably be closely scrutinized. A parent filing such a preference may be seen as not having a child's best interest at heart. In effect, the motivation of a parent as opposed to a legitimate choice by a child may be the focus.

In her article, Janice Green lists a number of motivational factors in her article that can be seen as unfairly influencing a child's preference. The list includes: fear of retaliation or punishment if the child does not choose one parent; bribes; with which parent will a favorite pet reside; caretaker role of the child with a parent; choice and strictness of rules of discipline by a parent; neighborhood; lifestyle and social status associated with one parent; anger and/ or revenge; perceived love and attention; and seeking some sort of control over the uncontrollable. As a result, we may simply be enacting a battle of psychological experts to opine regarding not only the maturity and cognitive development of the child but the psychological evaluation of the parent who procured the choice.

The circumstances under which statements of preference are secured almost always provide fertile grounds for attack. See The Child as a Witness, Jan Marie Delipsey, Phd. & Hon. Paula Larsen, 2000 Adv. Fam. L. There are those who would argue that when executing a written designation of preference pursuant to ¤153.008, filing it with the court is a "decision of substantial legal significance concerning the child" so the power to obtain it from the child is exclusively that of the managing conservator. Dealing with Choice of Managing Conservator in a Custody Case, Earle S. Lilly & John E. Van Ness, 1995 Adv. Fam. L. Therefore, if there has been no managing or temporary managing conservator, who then has that right?

In attempting to determine the extent to which a 10 year old can control who is appointed managing conservator, the initial question to be answered is what is meant by the phrase "subject to the approval of the court?" The term "the court" in ¤153.008 has been defined as only the judge, not the jury. This analysis is then critical when making the determination as to whether or not there will be a bench trial. In deciding whether to approve the choice, the judge should consider all of the evidence and make a determination based on the best interest of the child. In weighing a child's preference, the Court should also consider the age and maturity of the child and the potential for influence which may have been exerted by one or the other of the parents of the child. But will she? This being the case, in a bench trial it would appear that in the ultimate determination of conservatorship, the choice filed pursuant to ¤153.008 should merely be additional evidence to be considered by the judge, and as such perhaps no different than a preference voiced by a child under the age of 10. It is questionable that this is what the legislature intended. See Lilly and Ness.

In a jury trial, the written choice itself is probably not admissible. The ¤153.008 fails to specifically address the admissibility of a written preference filed with the Court as evidence in a contested trial. In Boriack v. Boriack, 541 S.W.2d 237 (Tex. Civ. App. Y Corpus Christi, 1967, writ dismsd), the Court examined the fact that there was a statutory requirement regarding the filing of the preference and compared that to the fact that there was a lack of a statutory provision which required that the writing be received into evidence. The child's written statement of preference for custody was admitted into evidence in a jury trial over the objection of the opposing parent. The Court concluded that the legislature contemplated that the writing would be received into evidence and considered by the fact-finder, the fact-finder being "court" as stated in ¤153.008, since it would be senseless to file such a writing if it were not to be considered. However, and quite significantly, the Court noted that it is error to admit a child's statement of preference into evidence at a jury trial. See Delipsey and Larsen. Simply put, it is hearsay.

Now, in custody contests and cases where there has been allegation of child abuse, there are specific rules which may allow a court to admit the statements of a child which would otherwise be hearsay. These rules and exceptions to the hearsay rule include the res gestae statement, relating to the excited utterance; state of mind, not offered for the truth of the matter but offered to show state of mind; medical diagnosis or treatment; business records; expert testimony, the opinion being based on hearsay; social studies, which can be considered by the court; and electronic testimony.

It is also important to remember and consider the fact that there is nothing in these statutory provisions which prevent a party from calling a child to the witness stand during trial if the child otherwise qualifies as a witness and is competent to testify under the other rules and therefore understands the taking of an oath. But, most attorneys are reluctant to call a child as a witness in civil cases involving custody, and judges usually strongly discourage the practice, as it is upsetting to the child and requires the child to openly pick and choose between parents as the parents watch the child testify. Thus, while this option may be technically available, pragmatically speaking it must be a very carefully considered option which may have a very negative and far-reaching effect. The Amarillo Court of Appeals In the Matter of the Marriage of D.M.B. and R.L.B. and In the Interest of R.L.B., a Child, 798 S.W.2d 399 (Tex. App. Y Amarillo 1990, no writ), considered maturity, not competence, of a child witness and found the child to be too young to express a preference for a custodial parent.

An attorney considering calling a child as a witness may seriously consider the issue before doing so because the jury and perhaps the judge may well penalize that party for exercising bad judgment. A very careful analysis should be made with input by the client and perhaps a mental health provider of this option. It could be suggested that the trauma of having a child testify can be lessened somewhat by a prerecorded videotaped question-and-answer format. Section 104.003 of the Texas Family Code allows for such testimony in certain circumstances. Sometimes an interview of the child in chambers can be useful in determining a child's true feelings concerning custody matters and may give the court insight into parental relationships and whether pressures have been exerted on the children. Useful information sometimes becomes available in chamber interviews with the judge that may aid the court in rendering a decision. 33 Tex. Prac., Handbook of Texas Family Law ¤15.7 (2000 ed.). However, when a jury has been empanelled, the option is lost.

We know that a jury verdict on the issues of the appointment of managing conservatorship and the determination of the primary residence are binding on the court. Tex. Fam. Code Ann ¤105.002. However, the court can render an order that contravenes the verdict of a jury but only as it relates to specific terms of possession, access, child support, and the rights and duties of managing, joint managing, and possessory conservators. In other words, these issues, even if submitted to the jury are advisory only and so most courts are reluctant to even submit them. Therefore, simply stated, while a jury verdict on the selection of a managing conservator is binding on the court, the allocation of parental rights and duties is not. Tex. Prac. Guide, Family Law Ch. 11.I.B (2000).

There are other options available to the court and the parties if the written choice is not obtained or if obtained and there are circumstances surrounding the choice that need or should be examined. In many cases, particularly with a young (10 years old) or immature child, the child might not even understand what she has signed or the impact of signing such a choice. Therefore, when the issue of managing conservatorship is contested, on the application of a party, the court must interview a child 10 years of age or older and may interview a child under 10 years of age to determine the child's wishes as to conservatorship. Tex. Fam. Code Ann. ¤153.009 (2000). Interviewing a child does not diminish the discretion of the court. Tex. Fam. Code Ann ¤153.009(b) (2000). In other words, a child over the age of 10 will be interviewed in chambers at one party's request, whether or not a child has filed a written preference. The Comment to ¤153.009 reads, "Mandatory interviewing of a child in chambers, on request from a party, is an important step in giving a child a voice in a lawsuit in which the child is the real party in interests." Notwithstanding the fact that the comment makes such a statement, there are those, particularly in the mental health field, who will argue that the courts are not qualified to analyze a child's statement or be able to discern whether or not the child has been unduly influenced except in the grossest or most obvious of circumstances.

The court has the discretion and may permit the attorney for a party or the attorney ad litem for the child to be present at the interview. Tex. Fam. Code Ann ¤ 153.009(c) (2000). However, the judge has full discretion as to whether or not to allow third parties to be present when the child is interviewed (except for a court reporter in the case of a child age 10 or older). See Kimerly v. Blackstock, 538 S.W.2d 503, 504 (Tex. Civ. App.Y Waco 1976, no writ). On the motion of a party or on the court's own motion, the court shall have a record of the interview made when the child is ten years of age or older. A record of the interview is part of the record in the case. Tex. Fam. Code Ann. ¤153.009(d) (2000).

Despite the outcome of a case to decide a managing conservator, when a suit is a modification of conservatorship the filing of a choice by a child over 12 will often be the determining factor in the ultimate outcome of the case, dependent again on the best interest standard. Until recently, when confronted with a modification proceeding in which sole managing conservatorship is to be modified, and in which a child has filed a designation of preference, one would find an unresolved inconsistency in the Texas Family Code. Section 156.001 provided the test for the modification of a sole managing conservatorship and in reading the section it is important to note that "best interest of the child" is not a factor. However, the legislature has amended section 156.101 dealing with temporary orders, effective September 1, 1995, to include a test for best interest of the child. See Lilly and Ness.

The burden of proof in a suit for modification of custody is easier when trying to modify a sole managing conservatorship to another sole managing conservatorship, as compared to the burden of proof set out in ¤156.104 of the Texas Family Code when modifying a sole managing conservatorship to a joint managing conservatorship. When modifying a joint managing conservatorship into a sole managing conservatorship, ¤156.203 controls and does not mention any decisive factors involving the child's preference. However, a ¤153.008 preference could still provide evidence of substantial and material change. See Green & Livingston.

Related Issues

The Texas Family Code at ¤153.131(b) states

It is rebuttably presumed that the appointment of the parents of a child as joint managing conservators is in the best interest of the child.

If the parents agree in writing to be managing conservators, the court must deliver an order appointing both parents as joint managing conservators if the agreement meets the statutory requirements set out in 153.133(a) of the Texas Family Code which includes a best interest test. If no written agreement is filed by the parents as to joint managing conservators, the court itself may order the parents to be joint managing conservators, only if the appointment would be in the best interest of the child according to ¤153.133(b) of the Texas Family Code.

There is a good argument that Tex. Fam. Code Ann. ¤153.008 is inapplicable in joint managing conservatorship cases since the real issue in joint managing conservatorship cases is the court's allocation of the rights and duties as set forth in the Family Code. Section 153.008 specifically refers to managing conservatorship, and does not address visitation or possession schedules between the parents. It has been held that a child's preferences concerning visitation are not controlling. Walker v. Showalter, 503 S.W.2d 624 (Tex. Civ. App.YHouston [1st Dist.] 1973, no writ). It can be argued that ¤153.008 and ¤153.009 of the Texas Family Code do not apply where both parents are named joint managing conservators since the real issue in joint management cases is the distribution of rights, duties, powers and privileges set forth in ¤153.132. See Green and Livingston.

The policy in Texas is in favor of keeping siblings together, and splitting custody of siblings is presumed not to be in the best interest of a child. The party requesting split custody must show clear and compelling reasons why it is the child's best interest. Pizzitola v. Pizzitola, 748 S.W.2d568 (Tex. App.Y Houston [1st dist.] 1988, no writ). A good argument can be made that the right of the child to choose is affected and perhaps limited by the rights of the other siblings, if there are any, who may want to live with the other parent, or who may not be old enough to choose, and vice versa. If after hearing the evidence, the judge approves the choice made by one child over the age of 10, and appoints the designated parent as sole managing conservator, the issue of potentially splitting of custody would arise.

Conservatorship of two or more children of a marriage should not be awarded to different parties absent clear and compelling reasons. See also Zuniga v. Zuniga, 664 S.W.2d 810 (Tex. App.Y Corpus Christi 1984, no writ). But in the 1992 Appellate Court case of MacDonald v. MacDonald, 821 S.W.2d 458 (Tex. Civ. App.Y Houston [14th dist.] 1992, no writ) the court held that the Family Code does not require a party to show clear and compelling reasons to split custody of siblings and that split custody is merely one factor to be considered in determining the best interest of the children.

Conclusion

Child custody is a bundle of rights that include the right to physical possession of the child; to decide where the child will live and with whom the child will associate; to collect the child's earnings; the control the child's religious and secular education; to make medical decisions; and to grant and withhold permission to travel, worship, work, and marry. Along with the rights of custody come responsibilities: the duties to feed, clothe, house, educate, protect, and supervise the child. The allocation of custody rights becomes a matter for the courts in separation and divorce cases where the parents cannot agree. Barbara Bennett Woodhouse, Child Custody in the Age of Children's Rights: the Search for a Just and Workable Standard, 33 Fam. L.Q. 815 (1999).

The public has a stake in the welfare of children. Judges acting on behalf of the public must place children's interests ahead of either parent's claims of rights and allocate custody to the party best fitted to meet the child's particular needs. In other words, judges act in the best interests of the child. Id.

It is important that a child have a say in what happens in his life. Allowing a child a preference in choosing a managing conservator provides that child a right to be heard. Texas law gives this right to a child over the age of 10. But Texas courts will not elevate the interests of one family member, the child, above those of other family members, potentially to the detriment of the collective interests of the family unit. When determining the managing conservator a court will look at many factors, all in an effort to decide what is in the best interest of a child. The best interest of child is only to some extent dependent on a child's preference. Although a child's preference is an important right granted by the legislature, by no means is it seen as the most important right, especially in the context of the rest of the family. It is also material to note that in weighing a child's preference the Court must consider the age and maturity of the child. The statute sets the age for a child to make a written preference at 10, but by no means is this absolute w a judge must always consider a child's maturity and the context in which a written preference was obtained.

J. Lindsey Short, Jr. graduated from the University of Texas Law School in 1967, after obtaining a Bachelor of Arts degree at Washington & Lee University in 1965. Mr. Short has been Board Certified in Family Law since 1980. He is a Life Fellow of the American Academy of Matrimonial Lawyers, serving as the President of the Texas Chapter in 1987 and the National President 2001-2002. He has also served as Adjunct Professor at the University of Houston Law Center, Washington & Lee University School of Law and the University of Texas School of Law.

Texas Paralegal Journal © Copyright 2006 by the Paralegal Division, State Bar of Texas.

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