When Texas parents are divorcing or fighting over custody of children that they share, many factors are used by the courts to determine the best custody arrangement. The most important consideration that courts consider when awarding custody is what is in the “best interests” of the children. Various factors can contribute to what a court finds is in a child’s best interests, one of which is the desire or choice of the child themselves. Parents will often request that a judge interview a child in their chambers (in camera) and ask them which parent they would like to live with. Under some circumstances, courts have the ability to perform an in-camera interview of a child, however, it is not always done. The Texas Court of Appeals recently affirmed a family court’s decision not to perform an in-camera interview in a divorce case.
According to the facts discussed in the recently published appellate opinion, the parties were married in 2003 and had four children before separating in 2017. During the divorce proceedings, the mother requested that the court perform an in-camera interview of the parties’ oldest child, who was 13 years old at the time. Under Texas law, a judge shall interview any children over 12 years old to determine their placement preference. The family court denied the mother’s request, ruling that she had waived her right to have the child interviewed and failed to file the requisite motion with the Court. After a trial in which the eldest child was not interviewed by the judge, the father was awarded primary custody of the children.
The mother appealed the family court ruling, arguing that the court was required under the law to perform an in-camera interview of the child. On appeal, the high court acknowledged that Texas law requires an in-camera interview of children over the age of 12 if requested by either party, however, the ruling was still upheld. Texas appellate procedure requires an appellate court to perform a harm analysis in the event of an error below. If the court determines definitively that a lower error was harmless and that resolution of such error would not change the final ruling, then the court shall not reverse the ruling. Because the child’s desires had been adequately determined through the testimony of a therapist as well as through a custody evaluation performed by a social worker who did interview the child, the court found that the lower error was harmless and did not change the lower ruling.