Texas Supreme Court Reverses and Remands Custody Case for Child Interview

In some Texas custody disputes, a parent may want the court to hear an older child’s preferences regarding conservatorship or possession.  Upon application of a party in a suit affecting the parent-child relationship, the court is required to interview a child 12 or older in chambers to determine their wishes regarding conservatorship or the exclusive right to determine their primary residence, in a nonjury trial or hearing.  If the child is under 12, the court may interview them, but is not required to do so.  Tex. Fam. Code § 153.009(a).  A mother recently appealed a judgment awarding the father the exclusive right to designate the children’s primary residence after the court declined her request for an interview.


According to the opinion of the Supreme Court of Texas, the father petitioned for divorce in 2017.  He requested the court interview the children. The mother, however, demanded a jury trial and paid the associated fee.  Mother subsequently withdrew the jury demand. Her attorney stated she did so to benefit from the interview provision in Section 153.009(a), and the mother ultimately testified similarly.

The mother’s attorney requested an in-chambers interview with the oldest child pursuant to Section 153.009(a) by letter emailed to the court coordinator. The attorney also repeatedly called the coordinator to try to get the interview scheduled.  The attorney also requested the interview again at trial, explaining the mother had withdrawn her demand for a jury trial to allow for the interview.  The court, however, denied the request because the mother had not filed a written motion.  The oldest child was 13 at the time of the trial.

After the trial, the mother filed a brief in support of an interview with the child in chambers, representing the child preferred to live with the mother.  She also filed a motion for the judge to confer with the children a few weeks later.

In the final divorce decree, both parents were named joint managing conservators, with the father receiving the exclusive right to determine their primary residence.

The Mother’s Appeal

The court of appeals held the trial court erred in not conducting the interview but was split on whether that error was subject to a harm analysis.  The majority held the error was harmless because an interview would not diminish the trial court’s discretion in determining the child’s best interest. The dissent took the position that a harm analysis did not apply, but even if it did, the error was harmful in likely preventing the mother from properly presenting the case on appeal.

Trial Court Erred

The Supreme Court of Texas granted review and concluded the trial court erred in failing to interview the child.  The child was older than 12 and there was no dispute she could express her wishes.  The mother had timely applied for an in-chambers interview.  The court therefore had a duty under the statute to conduct the interview and erred in not doing so.

The Supreme Court also pointed out the statute does not require the party to file a written motion. The mother had timely and repeatedly made the trial court aware of her request, so the trial court erred in declining to perform the interview.

Harm Analysis

The Supreme Court agreed with the appeals court that the error was subject to a harm analysis.  Generally, a civil judgment cannot be reversed on appeal based on an error of law unless the error was harmful.  Tex. R. App. P. 44.1(a), 61.1.  While there are exceptions, none of them applied.

In conducting the harm analysis, the court must consider if the error either probably caused the court to render an improper judgment or probably prevented the party from properly presenting their appeal. Tex. R. App. P. 61.1.

Violation of the interview provision will generally result in improper exclusion of the testimony of the child.  In this case, however, it also caused the mother to withdraw her demand for jury trial “on a false premise.”

The Supreme Court noted a party is entitled to rely on a trial court to follow a statutory requirement.  The trial court erred in not following the statute and declining to interview the child.  The mother had expressed a preference for a jury, but gave up that choice so the child in reliance on the court following the statute and court policy requiring the child be interviewed.  The mother had requested a jury trial and paid the fee, and repeatedly made clear that she had given up her right to jury only to benefit from the interview provision.

The mother’s request for a jury trial and her choice to waive that right for the purpose of obtaining the benefit of Section 153.009(a) was well-documented in the record.  The Supreme Court noted that if the record does not show the parent would have pursued a jury trial if not for the request for an interview, the harm analysis would not consider the loss of a jury trial and would instead focus on the impact of the excluded testimony of the child.

The Supreme Court concluded an error causing a party to lose the right to a jury trial is harmful if there were material fact issues to be resolved.  The Supreme Court concluded that appointing a parent to have the right to designate the child’s primary residence involved factual disputes the mother had a right to present to a jury, so her loss of the opportunity to do constituted harm.

The remedy for a violation of the interview provision may depend on the circumstances of the case.  In some circumstances, the appeal court may abate an appeal and remand to allow a trial court to conduct an interview.  In other cases, a new trial might be required. In this case, the mother asked for reversal and remand.  The Supreme Court reversed the part of the judgment that gave the father the exclusive right to designate the child’s primary residence and remanded to the trial court to conduct the interview and amend the judgment.

Contact a Skilled Dallas Custody Lawyer

In this case, it was important the mother’s request for a jury trial and her reasons for waiving that right were well-documented.  A knowledgeable Texas child custody attorney can fight to protect your rights.  Set up a consultation with McClure Law Group at 214.692.8200.

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