Protecting Your Family's Future

Will My Child Testify in My Texas Divorce?

Unless your divorce case goes to a jury for decisions on child custody and visitation (formally called conservatorship and possession in Texas), then your child will not have to, or be allowed to, testify in open court during your divorce case. In Texas, either spouse can request a trial by jury to resolve issues that cannot be resolved by means of negotiation or mediation.

Although the chance of a child testifying in open court during a divorce or child custody case is rare, it is a different story when the forum is a non-jury trial or a hearing before a family court judge. If a judge, not a jury, is deciding your divorce case or child custody hearing, then Texas law states that the judge “shall” interview the child in chambers if the child is 12 years old or older if an application is made by an amicus attorney or an attorney for the child (known as a guardian ad litem). The judge “may” interview a child younger than 12.

In other words, Texas law requires the judge to ask the child’s preference regarding child custody if the child is at least 12 years old and the child’s guardian ad litem or an amicus attorney requests the judge to do so. If the child is younger than 12, then the judge is not required to ask the child’s preference but may choose to do so. The law allows either parent’s attorney to be present at the hearing, but not the parents themselves.

The child’s stated preference will not be binding on the judge, who is also required by law to decide custody and parenting time disputes based on the child’s best interests, which may be different from the child’s stated preference.

Children’s testimony in divorce and child custody cases is governed by Texas Family Code section 153.009.

Hotly contested child custody disputes are one of the most difficult types of family law conflicts imaginable. If you are considering divorce and believe that custody will involve a serious fight, you and your child deserve a knowledgeable and experienced advocate. Stewart Law, PLLC, located in Baytown, Texas, has provided legal counsel to men and women in divorce and family law matters for 8 years. For an initial assessment and consultation of your case, contact us online  or call our office at (281) 420-8020, at a reduced fee of $50.

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Stewart Law PLLC