Where Will He Live?

ashley1979April 1, 2009

The "Has anyone here, ever gotten this line????" thread brought up something that has been a constant irritant the past 6+ years I've been divorced.

I live in Texas and this is from the Texas Family Code:

Chapter 153, Sec. 153.008 and 153.009

Sec. 153.008. CHILD'S PREFERENCE OF PERSON TO DESIGNATE RESIDENCE. A child 12 years of age or older may file with the court in writing the name of the person who is the child's preference to have the exclusive right to designate the primary residence of the child, subject to the approval of the court.

Sec. 153.009. INTERVIEW OF CHILD IN CHAMBERS. (a) In a nonjury trial or at a hearing, on the application of a party, the amicus attorney, or the attorney ad litem for the child, the court shall interview in chambers a child 12 years of age or older and may interview in chambers a child under 12 years of age to determine the child's wishes as to conservatorship or as to the person who shall have the exclusive right to determine the child's primary residence. The court may also interview a child in chambers on the court's own motion for a purpose specified by this subsection.

(b) In a nonjury trial or at a hearing, on the application of a party, the amicus attorney, or the attorney ad litem for the child or on the court's own motion, the court may interview the child in chambers to determine the child's wishes as to possession, access, or any other issue in the suit affecting the parent-child relationship.

(c) Interviewing a child does not diminish the discretion of the court in determining the best interests of the child.

There is much more, but it involves a jury trial so I didn't think it applied.

My X has been telling my DS that he will come live with him at age 12. He's a fairly good father, but we definitely have a different set of moral values and I'm not so sure that X's home is the best place for a teenage boy to be. Not one that's going to make something of himself. Plus, X smokes in his apartment and doesn't keep it clean.

According to this, a child can make a request after the age of 12, but it's still the courts' decision as to what the best interest of the child is.

I was so relieved to read the actual statute on this because I thought for sure I was going to have to give up my kid. Does anyone fear the age of 12 as far as having to give up custody of your kid?

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X told me once that if I don't like XYZ (whatever I complained about, don't remember probably CS), then DD could live with him full time, he'd be very happy. My X is a good father and his household is appropriate for children, but I wouldn't want my only child to not live with me full time.

    Bookmark   April 1, 2009 at 4:59PM
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I'm not sure what the laws are in my state. I believe my X could file for custody anytime he wanted. He knows better after our initial custody fight in court. 10 years ago when we divorced he went for custody, not because I'm a bad mom, just because he loves our daughter and wanted her to live with him. This state is a womans state, and a biomom practicaly has to die for a father to get custody. My DH tried for his son when they divorced too, the courts returned him to his mother.
I don't know when a child gets a voice in the courts here.

    Bookmark   April 1, 2009 at 6:24PM
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I remember my best friend had to give up her child when he did turn 12, for several reasons.
1. the child wanted his father. ( i warned her that this would happen, and i knew it would be that age because of the legal system..but also cause its easy eh...the diapers are gone , the temper tantrum..etc.etc...
2. He accused her of being an unfit mom. She would always leave her son with her mother (gm) and work long hours...problem was her line of work. SHe first was a barmaid in a strip club...she soon began to strip for the money.
She didn't get much in childsupport but the problem was her mom was also on welfare and so she needed the extra cash.
Her ex husband obviously wanted to stop Cs ANd ...he wanted his son after learning he was being left with grandma and no mom in site.

Unless your husband is proven to be a really bad father, and i mean bad, drugs, drinking. basically an unstable environment, your child can huff and puff he wants his dad, the courts will not grant him custody.
If he only smokes in the house, your son can ask him to smoke outside.
When i met my husband , he was depressed, in debt, smoked in the house, smoked in the car...i am a nonsmoker..hate the stuff! yuk...i dont know how people survive clubs !!!! He did drink....nice present from the spirally death of the marriage..etc..etc...His drinking stopped after the divorce and way before i came into the pic...(cause i would never have married a drunk) I did understand why his ex would be worried and callign her babies when they came ot visit.
Now things have changed. No smoking in the house or in the car. BM does it!! and the substance abuse on her part...
so in my case, the situation has become the opposite.

In your case, if its only smoking..mmm...not enough and if you say he's good....well...instead of him going full time with dad, why don't you ask your son to do 50 /50???? As a start at 12 years old. Instead of 100 %.. this way he gets a feel for both houses more. visitin eow just doesnt' give him the full pic and may seem its greener on the other side scenario. So speak with your son to do 50 - 50 with dad...
no you wont get CS but you wont lose your son and he wont resent you either. Cause look at it from this perspective, if the courts say no and dad is really a good guy aside from the fact he has bachelor tendancies, your son could act up real bad in those years and retaliate.
i think shared custody may work to benefit both sides.

    Bookmark   April 1, 2009 at 7:03PM
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Thanks, OM! Can I call you OM???

That's a GREAT suggestion! I hadn't even thought of it. I guess I've been so focused on one or the other that it never occurred to me to do 50/50. LOL! That's why forums like this can be very helpful; help us think outside the box.

My X is "basically" a good father. It's his moral values I don't like. Other than smoking in the house there's moral things I don't like. For instance, he curses A LOT. Now I curse occasionally, but to X it's just part of the language. And he says the G-D word and that is a total no-no in my book.

Also, he doesn't like to work. His job is a little rocky right now and when I suggested he get his resume together and get it out there, he said to me "H*ll no! I'm gonna get unemployment from their a**!" How mature is that? Especially when he just went through 9 months of being unemployed and just had the CS adjusted lower? I don't want him showing our son that behavior. He sees a little bit now, but SO and I have been the counter-balance. What happens when that counter-balance is gone?

Also, he doesn't go to church and makes a ton of excuses why he doesn't go. As it is now, DS only gets to go EOW when he's with me. I, for myself and my child and my home, believe church is an important way to be reminded and recharged for the next week.

I want my son to have a good moral foundation to build on so he can resist all the bad stuff that's coming his way.

X cheated on me, hit me, used drugs and vandalized my car. I don't think he's still doing those things, but I don't know. I know he has some pretty big blow-outs with his GF. I divorced X to spare my son from that and to keep him from learning those behaviors.

But 50/50 would be good. It would provide that counter-balance between X and I.

    Bookmark   April 2, 2009 at 12:12PM
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Ashley - I've been in your shoes exactly. Ever since we divorced when DS was 2, Ex has been saying to DS "When you're 12, then you can come live with me." As time went on, he added other inducements - later bedtimes, gaming systems, laptop computers, a 3-room 'suite' instead of a regular bedroom, and finally a 52" flat screen TV! I refused to keep up with the outright bribery, not that it would have made a difference -- Ex is relentless and would not have taken 'no' for an answer - ever. Ever.

So on DS's 12th birthday, Ex presented him with a already-filled-out legal document to sign stating that it was DS's preference to live with Dad. On his birthday! DS called me in tears.

My objections were similar to yours Ashley -- Moral issues (gambling, financial improprieties, lying), parental judgement (bribery, encouraging DS to sneak and lie to me), values (overly materialistic, superficial). And while I did have therapists on my side (who had worked with Ex and me to try to resolve parenting issues), and Ex also had a diagnosed personality disorder (Narcissistic Personality Disorder - NPD) working in my favor, my attorney told me that it simply wouldn't be enough to be able to convince a judge to overrule DS's signed form.

With some legal maneuvering, (joint counseling, attempting to reach a negotiated settlement versus fighting it out in court) I was able to delay it for a year, but in the end, our visitation arrangements flip-flopped, and now I have DS 2 nights per week + EOW.

For what it's worth, the dire consequences I feared from the custody switch did not really materialize. Having DS for his first 12 years did enable me to instill a strong moral foundation. I won't say he's never faltered -- just that when he has, he's known it and felt appropriately guilty. He also is able to judge his father's behavior independently, and he often doesn't like what he sees. He recognizes his father's selfishness and dishonesty for what it is -- which is really a good outcome for the teenage son of an NPD parent. It takes most children of narcissists years to figure it out and learn to deal.

Anyway - I guess all I'm advising is to lay your moral groundwork well now, because it'll probably have to withstand some pressure. Unless your Ex falls apart, if he does decide to press for custody and your son decides to go for it, from what I've heard, there really isn't much you will be able to do about it. Reaching a new agreement in lieu of fighting it out in court is a good step -- it bought me a year and some pretty good terms. But otherwise, the law in Texas basically allows the kids to decide.

    Bookmark   April 2, 2009 at 2:53PM
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Thanks Sweeby! You really are the voice of reason! You are so right about laying the moral groundwork now, because, as you said, there's really no out-right reason why X wouldn't be able to have custody.

And I believe that DS has a WAY better moral foundation to build on than X ever had. Already it's helped him to see some of the lies X has told him.

I'm sure when the time comes we'll make some sort of agreement in mediation. But I know that X has no idea what he's in for raising a kid every day as opposed to being an EOW Disneyland Dad.

    Bookmark   April 6, 2009 at 3:03PM
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Wow, yah, my hubby did drugs with his exwife, drank alot , very abusive verbally with her but not physically. She was no cake either. She did the same to him and she would get physical. With all the substance abuse it was just a downwards spiral for both of them.
As for religion...yah ex wife is religious but she doesn't practice what she preaches and is quite a hypocrite unfortunately.
And no my husband is not religious either. My family has many priests, nuns,,etc...were quite religious. I'm in the middle and even though i do not attend every sunday...i try to go on big occasions. But i have to admit...i miss going to church every once and a while.
But ashley do not worry, if your son has been raised in such a way from young, its so integrated in him , he will not forget those ways...he may evne rub these tendies on his father...as in no swearing:) My dh swears too but he's curved it quite a bit...i do occasion cuss...but out of anger but still...i need to watch myself!! lol...
i think speakign with your son more and evne allowing more time now with dad my get him to see that his father is opposite of him or he may not like some of the things he does...Maybe convincing him at 14 is a better age or 15 to spend more time with dad???
Either way, its alot of responsibility on dad's part to switch from EOW to 50 - 50. And most men i see hesitate..because they are just not use to having them like that and in the end...most do not want it. Not because they dont love their child..but they do not want to give that much energy and time.

    Bookmark   April 6, 2009 at 5:39PM
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I say this with a bit of humor...

Shouldn't all kids HAVE to go live with the other parent at 12? (or when the kid starts getting that 'teen tude'?)

Just a thought....

    Bookmark   April 6, 2009 at 6:13PM
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There's some validity to that observation Ima!
I got a much nicer kid 2 nights per week and EOW than the one I sent over! Even Ex and SM commented that DS's behavior changed (for them, for the worse) when he moved, and that they could finally see the behaviors I had observed before and been concerned about. And I could finally see the "He's an angel" kid they always insisted he was. Very interesting social experiment...

    Bookmark   April 6, 2009 at 10:01PM
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Unfortunately I am told that there is no way to force a parent to take his child.

    Bookmark   April 6, 2009 at 10:15PM
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C'mon kkny! I know it might be semantics or maybe a slip up... but you could have said "Unfortunately I am told that there is no way to force a parent to take 'their' child." Lots of BM's can't be forced... it's not just dads!

as my DD would say "I'm just sayin'"

    Bookmark   April 6, 2009 at 11:06PM
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Proper grammer allows the use of him or his for any person. You are nitpicking.

    Bookmark   April 7, 2009 at 8:12AM
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Sorry to pick nits. As long as it's agreed either gender can't be forced to take the child. (lol, I didn't know it was Proper grammar!)

    Bookmark   April 7, 2009 at 9:02AM
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Ima, It was improper to capitalize the P in Proper, I m just sayin LOLOLOL

    Bookmark   April 7, 2009 at 9:56AM
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LMAO... see, I AM learning something new everyday! Who needs college????

    Bookmark   April 7, 2009 at 10:34AM
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Yeah, yeah -
But where are the damn pants!?

    Bookmark   April 7, 2009 at 11:38AM
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This isn't related to anyone's situation... but I received a case today from Texas. The attorney that sent it to me was insistent that it has to be served right away... they sent it via fedex. Well, I am going to try to serve it tonight so I read what the case is about... as I always do, just in case there is any alleged violence, etc.

It's a case where dad lives in Texas, Mom is in CA. From what I gather, son lives with mom and is currently visiting dad in Texas. I guess dad retained an attorney and filed for custody... immediate & temporary until a hearing. The son is 12 and the documents include a form the son signed stating he wants to live with dad. As a mom, I don't know how to not be affected by this because, while I don't have all the facts (there was nothing in the papers giving any reason other than the son wants to live with dad) and I don't know any other details... it just appears on it's face to be sneaky and underhanded of dad to wait until son is in Texas and get this immediate and temporary order that says the child must remain in Texas pending the hearing. So, I have to deliver the news to a mother that her son isn't coming home this weekend. I'm sure that's why they wanted me to serve her before the end of the week.

I believe everybody deserves to have proper notice of court proceedings but sometimes... it just sucks to deliver the news like this.

PS. I'm not looking for sympathy... just so ya know!

    Bookmark   April 7, 2009 at 8:55PM
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