When it comes to custody and visitation decisions, there are a lot of criteria that we – attorneys, judges, and Guardians ad litem – must consider. As a parent, there are a lot of criteria you may be weighing, too.
One of those factors is almost certainly the child’s preference. Does the child prefer to have one stable, consistent home base, or to split his or her time more equally with both parents? Let’s talk about a child’s preference and the weight it carries, because I think it’s an important part of the discussion.
A child’s preference matters, especially to that child’s parents. We want to do things that make our kids happy and we certainly want to be sure that we’re making the choices that will pave the way for the child to have a bright future ahead.
In Virginia, custody and visitation decisions are made based off of the ten “best interests of the child” factors as codified by statute, so – from a legal and practical standpoint – these are the points the court (including its officers, like attorneys and GALs) must consider. In fact, factor number 8 specifically addresses the child’s preference: “[t]he reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age, and experience to express such a preference”.
So, the child’s preference IS one of the things the court is explicitly told to consider. But what does that mean in practice?
It’s not just the child’s preference that carries weight; you also have to look to the child’s “intelligence, understanding, age, and experience”. This means that the court doesn’t take the child’s opinion as a matter of fact and incorporate it into the final order. That would be bananas!
Most judges would say that the child can absolutely have a preference that carries automatic weight at age 18; before that, the child’s preference is one of a number of factors that are weighed in order to determine what is in the child’s best interests. The court could regard or entirely disregard the child’s preference, especially if it was obviously not a preference based on what is actually in the child’s best interests.
An example? Happy to give one. “I want to live with dad because I can eat ice cream for dinner and play video games all night,” is a great example of a child expressing a preference that does not demonstrate that the child’s intelligence, understanding, age, and experience makes him able to really discern that this might not be the best or healthiest arrangement for him.
I’ve heard of judges taking a child’s preference seriously. I’ve also heard of judges completely disregarding it. There is no automatic age in Virginia where the child’s preference carries more weight than if the child were younger. There is no guarantee, in short, that the child’s preference will weigh more heavily than the other factors that the court must consider. Factor number 8 is, in short, only one of ten such factors that the court must consider.
In any case, most of the time, children do not testify in court. Though the child’s preference may be something that is discussed, it’s usually not the child himself or herself that testifies to that fact. Occasionally, a child is interviewed by a judge, but this is usually in camera (meaning, privately, in the judge’s chambers) rather than in open court.
Though children are intelligent, most courts (and judges and Guardians ad litem) don’t prefer for parents to discuss the ongoing conflict with the child(ren) in too much detail. Though they almost certainly are aware of it on some level, it can be difficult to actually have an appropriate conversation with them where you determine what their preference is – and it might be held against you if you try. Are you exposing them to conflict? Are you asking them outright? Are you damaging them – or alienating them from their other parent? Is the child experiencing pressure to make one or both parents happy? Would the child feel he or she could tell the truth, even if he or she wanted to? Is it an informed and appropriate choice? It’s definitely a risky proposition.
Once, I had a case where the Guardian ad litem told the court that the child DID have a preference, that he had expressed that preference to the Guardian ad litem, and that the child had then specifically told the Guardian ad litem NOT to tell the court because he didn’t want to hurt either of the two people who were fighting over custody of him.
Additionally, I worry that the child even expressing a preference is dangerous for the child. Either the child expresses a preference and the court – or the parents and attorneys, or whomever – listens, or the child expresses a preference and the court doesn’t listen. If the court listens, the child is empowered and knows (or believes, or suspects) that he or she could change their preference at any time. If things don’t go well with one parent or during one particular rough patch, they may go to the other parent and ask them to petition the court for custody. If the child isn’t listened to, it gives the impression that their preference didn’t matter anyway. It sends the message that the child is not more important than the greater conflict between the parents.
Neither of these things is true, of course, or at least not fully true, but that doesn’t mean that it isn’t damaging for the child to absorb any of this messaging. Even if the child jumps to wild and inappropriate conclusions – heck, we’re talking about a child here, this is expected – that doesn’t mean that it isn’t damaging and inappropriate for the child to be involved to too great a degree.
I’m not saying that the child’s preference is irrelevant, but that, ideally, there’s a time and a place for the child’s preference to enter the conversation – and, usually, that isn’t through whatever either parent can offer to the court. A recording or testimony from a parent where the child indicated that it was their preference to live with that parent probably won’t carry that much weight. The court will likely assume that the child said this to that parent in order to please them or out of love for them. The child doesn’t want to hurt the parent. So, admitted in that capacity, the child’s preference holds less weight.
The Guardian ad litem, of course, is also a challenging contention, but probably the best vehicle for introducing a child’s preference, if the child’s preference is suitable for their age, intelligence, and experience. Usually, when I see a preference expressed, it is in the Guardian ad litem’s written report; sometimes, it is in their oral testimony or argument before the court, but it all depends.
So, long story short, the child’s preference may matter, but it doesn’t carry the day. It is also relevant to consider how the child’s preference is introduced and if that child’s preference is a mature, well-considered one focused on his own best interests. We have to assume here that children are children, and therefore not really capable of making grown up decisions all on their own, and that adults are adults, and have to be able to determine what’s best. Ultimately, it is adults, and not children, who make big decisions like custody and visitation.
It’s not that a preference doesn’t carry that much weight, it’s that the preference itself is from someone who really isn’t qualified to make such a complex assessment. When you’re a literal minor, it isn’t your responsibility to parent yourself; it’s your parents’ responsibility to parent you. So, though we care – I certainly care – what a child wants, that’s not the whole assessment. It can’t be, because the child can’t appreciate the complexity and nuance of the decision. And a kid might want something that will not grow them into the best human they could be.
Is that an oversimplification? Maybe. Does it give too much credit to the adults (like the parents themselves, a Guardian ad litem, a couple attorneys (ew, right?), and even the family court system itself)? Probably! But, also, that’s what we’ve got. A couple adults and a kid or two. The adults still have to carry the day, however flawed we all are.
A child’s preference is a tricky thing to navigate, no matter how you slice it. For more information, to schedule a consultation or for a copy of our custody book for Virginia moms, give us a call at 757-425-5200 or visit our website at hoflaw.com.