Hello and thanks so much for choosing this forum to pose your important legal question. I will do my best to give you some honest and accurate guidance.
I am a licensed Texas attorney with family law experience handling similar cases. I will be glad to try and provide you with some guidance.
Under Texas law, if 12 years of age or older, a child can sign an affidavit stating whom the child would prefer to live with.
Also under Texas law, if requested by a party, the Court will interview a child 10 years of age or older.
Neither the affidavit nor the information from the interview is binding on the court. It is evidence, however, and can be very important in custody cases.
Also, keep in mind that in Texas there is a rebutable presumption that parents should serve as the Joint Managing Conservators of their children. In plain terms, this means that what usually happens these days is that both parents share in the upbringing of their child. To get a different result (i.e. sole custody) requires a showing of extraordinary factors (i.e. child abuse, substance problems, etc.).
The bottom line is that the husband bears the burden of proof if he wants to go against the norm. Absent extreme factors, it would be highly unlikely that your niece would lose custody.
The best thing she could do is to speak with a lawyer. Realizing her limited financial resources, she could go here to speak with a licensed Texas attorney for $20. She can also go here to see if she qualifies for free legal services.
If we can be of any further assistance please free to use our service again. Best wishes for a successful outcome.
If my answer has been helpful to you, please click "ACCEPT" so that I may be paid. This is the only way that I will receive compensation for the work performed. Please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done. Clicking "FEEDBACK" to leave your positive comments is always greatly appreciated.
The information provided is general in nature only and should not be construed as legal advice. By using this forum, you acknowledge that no attorney-client relationship has been created between you and Benjamin M. Burt, Jr., Esq. You should always consult with a lawyer in your state.
Edited by Benjamin M. Burt, Jr., Esq. on June 9 2008 at 7:39 PM