Texas Appeals Court Affirms Custody Modification Contrary to Child’s Preference

In a Texas nonjury custody proceeding, upon the request of a party or certain other interested individuals, the court must interview a child who is at least 12 years old or may interview a child under 12 in chambers to determine their wishes regarding conservatorship or the person who will have the exclusive right to determine their primary residence.  Tex. Fam. Code § 153.009(a).  The interview is intended to help the court make determinations regarding conservatorship and possession, but the court still has discretion to determine the child’s best interest.  Tex. Fam. Code § 153.009(c).  Case law has held that the court retains its broad discretion and can either consider the information from the interview or even ignore it.  In re A.C. A father recently appealed a modification order that was not consistent with the child’s preference.

The parents were appointed joint managing conservators of their then two-year-old child in their 2009 divorce, with the father having the exclusive right to designate the child’s primary residence. A modification order in 2013 set forth the mother’s possession schedule, dependent on where she lived.

Modification Proceeding

The mother petitioned for modification in 2021, seeking the right to designate the child’s primary residence without a geographic restriction. She also asked that the father be limited to supervised visitation.

The court-appointed psychologist testified the father would not cooperate and told her the child was afraid of the mother.  The mother said the father was isolating the child.  The child told the psychologist the mother punched him.  The psychologist’s report stated the child was under pressure to say he did not want to live with his mother.  The father refused the psychologist’s request that he explain to the child he could safely visit the mother. The psychologist stopped the reunification therapy after a single session because of the lack of cooperation from the father. She testified she was not able to determine if the child was safe with the mother due to the limited time she spent with the family.

The mother had not exercised visitation for nearly two years at the time of the hearing.  She testified she kept the child beyond her possession period on her last visit because he did not want to go back and the father had not contacted her about meeting for the exchange.   She acknowledged she had not timely returned the child about “three or four times.” She expressed concerns the father was alienating him.

The ad litem arranged at least two visits while the case was pending.  When they went to pick the child up at school, the father had picked the child up himself.  When they went to the father’s house, he told the ad litem to leave.  The second visit occurred at a YMCA.  The mother wanted primary custody because she did not think the father would let her see the child otherwise.

The father testified the child chose not to visit with his mother.

The trial court ordered both parents remain joint managing conservators, but gave the mother the exclusive right to designate the child’s residence.  The father appealed, arguing the trial court abused its discretion by finding a material and substantial change in circumstances, failing to follow the child’s wishes, and allowing the mother to have the exclusive right to establish the child’s primary residence when she had physically abused the child.

Material and Substantial Change

The appeals court pointed out the parties had generally followed the possession orders until the father refused the mother possession in October 2020.  There was evidence the father interfered with the mother’s possession rights.  The appeals court concluded there was factually sufficient evidence of a material and substantial change in circumstances.


The trial court conducted a recorded in-chambers interview of the child. The child said he did not trust the ad litem.  He said the mother had threatened the father in front of him and made him feel unsafe.  He also said that she would not let him leave and hit him for wanting to leave in October 2020.  He said he would prefer no visitation with the mother.

The father argued the child’s choice should be given effect unless the record showed it was not in the best interest of the child.  The appeals court rejected this argument, noting it was based on authority from another appeals court and had been superseded by statute.  The father cited In re Galliher, which was based on a former statute that provided that a child who was 14 years old or older may choose the managing conservator by filing a writing with the court, subject to the court’s approval.  Former Tex. Fam. Code 14.07(a).  The current statute, however, requires a court to interview a child at least 12 years old in some circumstances and allows a court to interview a child under 12 in chambers to determine their preference.  Tex. Fam. Code § 153.009(a).  The appeals court further pointed out that the Galliher court acknowledged that the expressed preference of the child was not controlling over the trial court’s discretion.

The psychologist had said the child was “under a tremendous amount of pressure to . . . say how bad it was, that he would have to spend time with – with his mother and how she says bad things about his dad.” She testified that a child should not “be in charge – of whether or not they see a parent in a safe way.” She also opined that the child would have agreed to see the mother if the father assured him he could do so safely.

The appeals court considered the other Holley factors to determine the child’s best interest.  The parents had not been able to amicably co-parent for three years.  There was evidence the father had interfered with visitation.  The appeals court also noted there was evidence both the mother and the father had made the child responsible for ensuring he maintained a relationship with the other parent.

The appeals court did not find an abuse of discretion in the trial court’s determination it was in the child’s best interest to have a relationship with both the mother and the father.

Abuse Allegation

The mother denied hitting or shoving the child.  The psychologist did not discount the child’s allegation, but testified the child’s description of the incident was not physical abuse.  She testified she would have reported the allegation if it had been credible.

The appeals court noted there was conflicting evidence on whether the mother shoved or hit the child.  The trial court is responsible for determining credibility and could have believed the mother. The court also could have considered the psychologist’s testimony that the child’s allegations did not reach the level of physical abuse and that the father had pressured the child to make allegations.

The appeals court did not find the trial court abused its discretion in granting the modification and awarding the mother the exclusive right to designate the primary residence of the child.

The appeals court affirmed the trial court’s order.

Seek Skilled Legal Advice

Although a court may, or in some cases must, interview the child, this case shows that the child’s preferences do not override the best interest of the child.  If you are facing a contentious custody dispute, an experienced Texas child custody attorney can help you fight for your child.  Set up an appointment by calling the offices of McClure Law Group at 214.692.8200.

Contact Information