Texas Court Sides with Mother in Custody Dispute Demonstrating the Importance of Child Interview Statute

In a June 2023 case before the Texas Supreme Court, a mother appealed the trial court’s decision that allowed her children’s father to have the exclusive authority to decide where their four children should live. According to the mother, the judge had unfairly denied her request to have her 13-year-old child interviewed in the judge’s chambers, which ultimately resulted in an incorrect verdict. Looking at the record of the case, the higher court agreed with the mother and remanded part of the case in accordance with her request.

Facts of the Case

According to the opinion, the father, in this case, filed for divorce, and he asked the court to make a custody decision for the couple’s four children. In Texas, Section 153.009(a) of the Family Code allows parents to request that judges interview their children privately in chambers to take their wishes into account when making a cursory decision. If a parent requests this interview, however, he or she waives the right to a jury trial and is only able to proceed under a non-jury or a bench trial.

Early on in this case, the mother requested an interview between the judge and her 13-year-old child. By conducting the interview, said the mother, the judge would be able to understand that her children preferred to reside with her. To request the interview, the mother emailed the court, called the court 20 times, made an oral request on the record during the hearing, and filed two briefs after trial. The court, however, did not interview the child, and it also failed to offer the mother a jury trial in the absence of granting her request.

The court then gave the father the authority to decide where the children would live. The mother quickly appealed this decision.

The Decision

On appeal, the mother argued that she had waived her right to a jury trial solely for the purpose of having her child interviewed by the judge. The judge had denied her request and had failed to offer her a jury trial in the alternative. Originally, the trial court judge said that the mother failed to file a formal motion requesting the interview, which he said was required under the statute. Instead, the mother’s methods of contacting the court were insufficient to officially request the interview.

Looking at the record, the higher court agreed with the mother that the trial court mistakenly denied her request. Under the statute, a formal motion is not required. The mother had made her request clear, and she met the requirements under the Family Code – her child was at least 12 years of age and the mother requested the interview within the proper timeframe. Not only had the trial court improperly denied the request for an interview, but it also failed to offer a jury trial in the alternative.

Because this error had the potential to significantly affect the court’s custody decision, the higher court reversed this part of the decision and remanded the case back for additional proceedings.

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At Guest & Gray, we handle select family law matters for our clients in Texas, and we use an empathetic and strategic approach to help our clients get the results that are best for their families. If you are looking for a family law attorney for your divorce, custody, or child support dispute, look no further. For a free and confidential consultation with a member of our team, call us today at 972-564-4644. You can also fill out our online form to tell us about your case.


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