Texas Attorney General Ken Paxton filed an amicus brief on April 3, 2025, urging the Texas Supreme Court to reverse a lower court ruling that classified a trial judge's failure to interview a 12-year-old child in a custody dispute as "harmless error." The case centers on Tex. Fam. Code § 153.009, which requires judges to interview children aged 12 and older when a parent requests it. For Texas parents navigating custody battles, this Supreme Court decision could determine whether children's voices are genuinely heard or procedurally dismissed.
| Key Facts | Details |
|---|---|
| What happened | AG Paxton filed amicus brief challenging "harmless error" classification |
| Filing date | April 3, 2025 |
| Statute at issue | Tex. Fam. Code § 153.009 |
| Child's age | 12 years old |
| Lower court ruling | Trial judge's failure to conduct interview deemed "harmless error" |
| Potential impact | Could strengthen or weaken mandatory interview requirements statewide |
Why This Ruling Matters for Texas Custody Cases
The Texas Supreme Court's decision will establish whether trial courts can bypass the mandatory child interview requirement without consequence. Under current Texas law, Tex. Fam. Code § 153.009(a) states that in a nonjury trial or hearing, "on the application of a party, the court shall interview in chambers a child 12 years of age or older." The word "shall" in Texas statutory construction typically indicates a mandatory duty, not discretionary authority.
The lower court's "harmless error" classification creates a troubling precedent. If trial judges can ignore the mandatory interview requirement and appellate courts routinely classify such violations as harmless, the statute becomes effectively unenforceable. Attorney General Paxton's brief argues this interpretation undermines legislative intent and strips children of their statutory right to be heard in proceedings that directly affect their lives.
Texas courts handled approximately 78,000 custody cases in 2024, according to the Office of Court Administration. A significant percentage of these cases involve children aged 12-17 who have the statutory right to request interviews with the presiding judge. The Supreme Court's ruling will affect how every one of these cases proceeds.
How Texas Law Currently Handles Child Interviews in Custody Disputes
Tex. Fam. Code § 153.009 establishes a two-tier system based on the child's age. For children 12 years of age or older, judges must conduct an interview when a party requests one. For children under 12, judges have discretion to conduct interviews if the court determines the child is of sufficient age and maturity.
The interview requirement serves multiple purposes under Texas family law. First, it allows the judge to hear directly from the child about their preferences regarding conservatorship (custody) and possession (visitation) without the pressure of courtroom testimony. Second, it provides the court with information that may not emerge through parent testimony or attorney arguments. Third, it acknowledges that children approaching adolescence have developed preferences and insights worth considering.
Under Tex. Fam. Code § 153.008, the court may also consider a child's written statement of preference regarding conservatorship. However, this written option does not replace the interview requirement when a party makes a proper request under Section 153.009.
The statute also addresses confidentiality. Tex. Fam. Code § 153.009(d) permits the court to determine whether a record of the interview should be made. If recorded, the record is part of the case file but remains confidential unless otherwise ordered by the court.
What the "Harmless Error" Standard Means in Texas Appeals
Texas appellate courts apply harmless error analysis under Tex. R. App. P. 44.1, which requires reversal only when the error "probably caused the rendition of an improper judgment." The challenging question is how courts measure harm when a child was never interviewed.
The lower court reasoned that because the outcome might have been the same even if the interview occurred, the trial court's failure to conduct the interview was harmless. Attorney General Paxton's brief challenges this reasoning by arguing that some statutory requirements are so fundamental that their violation cannot be classified as harmless without undermining the entire statutory scheme.
This legal question extends beyond custody cases. If mandatory statutory requirements can be routinely waived through harmless error analysis, it affects how Texas courts interpret "shall" language throughout the Family Code and other statutory frameworks.
Practical Takeaways for Texas Parents in Custody Disputes
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File your interview request in writing before trial. Tex. Fam. Code § 153.009 requires "the application of a party," so document your request formally through a motion or written application to create a clear record.
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Object on the record if the court denies or ignores your request. Texas appellate courts require preserved error, meaning you must raise objections at trial to challenge them on appeal. State clearly that you are objecting to the court's failure to comply with Section 153.009.
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Prepare your child appropriately without coaching. Judges are experienced at detecting rehearsed testimony. Explain to your child that they will speak privately with the judge and should answer honestly. Avoid suggesting specific answers or outcomes.
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Understand the interview is not determinative. While judges must consider the child's preferences, Tex. Fam. Code § 153.009(b) clarifies that the court is not bound by the child's wishes. The interview is one factor among many in determining the child's best interest.
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Monitor this Supreme Court case. The ruling could change how aggressively you need to enforce the interview requirement. If the Court reverses the lower court, trial judges will face stronger incentives to comply with mandatory interview requests.
Frequently Asked Questions
Can my 12-year-old child choose which parent to live with in Texas?
No, Texas law does not allow children to unilaterally choose their custodial parent at any age. Under Tex. Fam. Code § 153.009, children 12 and older have the right to an interview with the judge, but the court makes the final custody determination based on the child's best interest. The child's preference is one factor, not the deciding factor.
What happens during a judicial interview with a child in Texas custody cases?
The judge meets privately with the child in chambers, typically without parents or attorneys present. Under Tex. Fam. Code § 153.009(c), the court may permit the attendance of an attorney for each party if the attorney agrees not to cross-examine the child. Most interviews last 15-30 minutes and focus on the child's daily routine, relationship with each parent, and preferences.
What if the judge refuses to interview my child despite my request?
You must object on the record to preserve the issue for appeal. State specifically that you are objecting under Tex. Fam. Code § 153.009. The pending Texas Supreme Court case will determine whether such failures can be dismissed as "harmless error" or require reversal and a new hearing.
Does Texas require judges to interview children under 12 in custody cases?
No, interviews for children under 12 are discretionary under Tex. Fam. Code § 153.009(a-1). The court may interview a younger child "if the court determines that the child is of sufficient age and maturity," but there is no mandatory requirement triggered by a parent's request as there is for children 12 and older.
When will the Texas Supreme Court rule on the child interview case?
The Texas Supreme Court typically takes 6-12 months to issue opinions after accepting a case. Attorney General Paxton filed his amicus brief in April 2025. Oral arguments may be scheduled for fall 2025, with a decision potentially arriving by early 2026. Texas parents should monitor the case for developments.
Speak with a Texas Family Law Attorney
If you're facing a custody dispute in Texas and want to ensure your child's voice is heard, consulting with a qualified family law attorney can help you understand your rights under Tex. Fam. Code § 153.009 and develop an effective strategy for your case.
This article discusses recent news and provides general legal commentary. It does not constitute legal advice. Every case is unique. Consult a qualified family law attorney for advice specific to your situation.