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Can my child choose to live with his dad?

The saddest part of a divorce when there are minor children involved is the way the kids feel torn between both parents. This is especially true when children are old enough to voice a preference about their custodial living arrangements.

Parents can feel immense pain and hurt when their children state that they prefer to live with the other parent. Their reasons can be logical and well-thought out or simply a knee-jerk response to a change in the status quo. Sometimes their preference may be based on the perception that one parent is more lenient while the other enforces limits and discipline.

What does Texas law say about children's preferences?

Regardless of the children's motivation for their choice, Texas law deals with the issue. When children are older than 11, the court shall discuss their preferences with them. But that doesn't mean that children under 12 are without a voice. Courts can address younger children's concerns as well, although they are not compelled to take their wishes into consideration.

In fact, Texas courts don't necessarily have to grant the preferences of older children regarding their living arrangements, either. Judges in custody matters are bound only to look out for "the best interest of the child." Most judges find that older children's preferences have more weight with the court, but it is never a given in such matters to decide based on a minor's preference.

Why give children that much latitude?

If you are the parent of a child who asks to move in with the other parent, it's good idea to really listen to what your daughter or son is saying. This doesn't necessarily mean conceding, but it does require an open mind.

Ask your child to clarify why he or she wants to live with your ex. It may have nothing to do with lax rules and a laissez-faire attitude about discipline. It could have everything to do with the amount of time that you are available to parent. If you are an airline pilot or oilfield worker who may be gone overnight or even days at a time, your son or daughter may prefer living with the other parent who is home every night by 6 p.m.

It could be something as simple as shared interests. If you have a son who grew up hunting and fishing with his outdoorsman dad, it's logical that he might want to live with dad to spend more time together on early-morning hunting expeditions or frequent fishing jaunts. It's not always personal.

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The role of friends, schools and extracurricular activities

When couples split, often one parent remains living in the family home while the other moves out to another home or apartment. Your child may loathe leaving his or her friends and school, give up a hard-won spot on the cheering squad or basketball team and start over as the new kid somewhere else.

Conversely, if you are the parent who moved out and relocated to a school district with a particularly strong academic or athletic program where your child could excel, he or she could be very interested in making the switch.

Finding the right balance of what's best for your child

Rarely are custody decisions weighted entirely on the side of one parent. Ideally, both parents have many positive attributes and can share many experiences with their children. You and your family law attorney can devise the best parenting plan possible and present it to the court if you and your ex can't reach accord.

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