Can my child choose which parent should have custody?

Posted on Sep 11, 2020 by Katie Carter

It’s pretty universally acknowledged that children – even very young children (and perhaps maybe especially very young children) – have very strong preferences. For my son (who is 3), the strongest of those centers around the color blue, which no one else is allowed to like except for him. Any toy that happens to be blue belongs to him, and this is expected (by him) to be accepted by everyone without complaint or objection. Any other substitute is not acceptable. Ever. And, hey, he’s nothing if not consistent.

Sometimes it’s funny or charming. Sometimes its infuriating. But, regardless, his preference (and his strict adherence to it) is the same.

Mostly I go with it. After all, my favorite color is pink, a fact that he respects and supports. Other times, though, I have to enforce things – like sharing – that he does not particularly appreciate.

Obviously, children’s preferences matter. In teaching them to be responsible, empathetic, effective human beings, we have to give them a voice and help them to cultivate it. In fact, I think some of these preferences and idiosyncrasies are some of the most fun things about children. (Hey, who knew some of these things were so important?)

But, when it comes to custody and visitation, does a child’s preference matter?

There’s really no short answer. Today, I’ll discuss the factors that play a role in a child’s preference, and how it might be applied by the court in a contested custody case.

While children may have a preference regarding custody and visitation, the court doesn’t really recognize that preference in Virginia. Technically speaking, the age at which a child can decide whether to live with mom and dad is 18, because that’s the point at which he or she becomes an adult, and not a child. While he or she is a child, he or she is a child – and so the court can decide, depending on the evidence, and after weighing the best interests of the child factors.

That doesn’t mean, though, that a child’s preference carries no weight at all. In fact, in some cases, it does.

Though we rarely call children to testify in open court about their preferences – for a lot of reasons – that doesn’t mean that a child’s preference isn’t at least considered when a custody and visitation decision is reached. Usually, the child’s voice is heard through the Guardian ad litem, an attorney appointed to represent the child’s interests to the court. In most cases, the Guardian ad litem makes a written recommendation to the court prior to the final hearing in the matter, and the judge can use that opinion in establishing and refining his own.

Of course, not all children are the same. My son’s preference, for example, probably wouldn’t be given all that much weight. I mean, he’s 3. So, that’s probably fair. (He did try to eat a glow stick yesterday, so I think it’s safe to say that his judgment is, unfortunately, lacking.) Children are different, in terms of age, temperament, understanding, education, ability, etc. All of those factors affect whether a child can really have a reasonable preference that also suits their best interests.

If a child is of suitable age and understanding, he or she could have a preference to which the court might assign some weight. Again, probably not because the child comes to court to testify (which could lead to psychological damage, among other negative effects) but because his or her testimony gets to the judge by way of the Guardian ad litem.

That’s not to say that the judge would award things to suit the exact preferences of a child, either. After all, Virginia judges regard the importance of both parents being involved with the child as an issue of paramount importance. So, if a teenager says that she hates her dad and never wants to see him, well, that doesn’t mean that she’ll never have to see him. In that case, mom may very well get primary physical (assuming there’s no other issues going on, like parental alienation or some other questionable characteristics of the child in question), but that doesn’t mean that dad will get no time.

That (probably, anyway) wouldn’t be in the child’s best interests. And a child, after all, is still a child, and, however mature, may not be 100% up to the task of deciding what’s in her best long term interests before she’s even turned 18.

Once custody and visitation is established, though, there’s really no room for the child’s preference. If visitation is ordered, the child must go. If the less desirable parent (by the child’s standards) wins custody, that parent has custody. At that point, however unfair, both parents have to uphold the court order, or risk running afoul of it and facing additional legal sanctions.

It’s tempting to think that your child can and should have a say in something as important as custody and visitation, especially if your child’s preference would result in you getting your desired custodial outcome. It’s also a dangerous proposition, and a difficult one, because kids aren’t always perfectly in sync with what will be best for them in the long term.

In general, the involvement of both parents is important. To the extent that you can, regardless of what the judge’s final order is, it’s a good idea to work to create a successful, harmonious coparenting relationship. Your efforts will place you in a good light when your case is litigated, and will also help your child adapt and adjust.

Our preferences matter, but sometimes things are out of control. We all face difficulties in our life and, if we could have chosen, we probably would have skipped them. But life – and custody and visitation orders – aren’t like that. Sometimes, we have to make lemonade. As parents, we have to help our children find the sunny sides, learn to deal with adversity, and, ultimately, grow up into happy, well adjusted, productive human beings.

It’s not easy. But it can be done, regardless of whether the judge takes your child’s preference into account today. For more information, or to schedule a consultation with one of our licensed and experienced custody attorneys, give our office a call at 757-425-5200.