Does the child have a choice in VA custody and visitation decisions?

Posted on Aug 9, 2021 by Katie Carter

Kids, even from a very young age, have very strong opinions about a lot of things. Some are logical and some, well, are not.

If you’ve ever been around a small child, you’ve probably seen this firsthand. I can’t tell you how many times I’ve cut a sandwich “the wrong way” (even if it was the right way yesterday). In fact, as a professional mom at this point, I generally recommend asking before cutting ANYTHING (because, once cut, it can’t be uncut – but uncut you still have a world of potential available to you) even though that can still, sometimes, despite your best efforts, lead you to troubles.

Though my children are young (4.5 and 1.5, respectively), I imagine that things are much the same with teenagers. In fact, I’m not convinced that it’s really much different than a three or four year old. In any case, a child is trying to figure out who she is, what she likes, who she’ll become. It’s definitely higher stakes for the thirteen or sixteen year old, and the risks are correspondingly higher, but the issues are (probably) similar.

This isn’t an article about parenting, though, which is good because my experience is limited to two children under the age of 5. I may – or may not – be able to give you helpful parenting advice, but that’s not really my strength. I’m here to give you legal advice for your upcoming custody and visitation case, and that’s something that I am happily quite well positioned to do.

I get questions all the time about a child’s preference, and about when a child will have a vote in a custody and visitation case. Can a child choose where she will live? Can the child arbitrarily favor one parent on Tuesday and a different one on Friday?

Well, obviously, a child’s fancy can change with the wind – we’ve already established that. But legally, it’s pretty likely that the child’s preference won’t matter at all.

Virginia does not have a law that specifically gives a child a right to establish their own preference for custody and visitation cases at any age.

To put it simply, a child is a child until the child is an adult – at 18. Until then, the child is probably not going to be called upon to give an opinion about custody and visitation.  After then, the child is an adult and no longer subject to custody and visitation determinations made by the juvenile court.

That doesn’t mean that we don’t see or hear about the child’s preference at all in a custody case. In fact, quite often we do. What we don’t like to do, though, is call a child as a witness and ask her to say, in open court, that she’d prefer to live with mom or dad.

The court can’t really give a child that much power. In any case, it would be traumatizing to have to appear in court and to choose one parent over the other. Besides that, it creates a complicated parenting dynamic. You listen to the child, and she’s empowered and thinks her voice is the only one that matters. Cue arguments like, “If you don’t let me go to that concert, I’ll tell the court I want to live with dad!”

On the other side of the spectrum, you have a child whose preference isn’t respected, who then feels unheard and unvalued, which is probably just as damaging.

In any case, it’s pretty clear that giving the child the appearance of having too much power over a custody and visitation case is not a good thing. Besides, there are several adults available who can help make those decisions better than – in most cases – a child actually can. Because, let’s face it, even at 16, we’re talking about a child.

How does a child’s preference come into play in a custody and visitation case?

So, up until this point, we’ve talked mostly about the problems with having a child testify in a custody and visitation case – the emotional trauma, the sense of empowerment or disillusionment that can come from having a preference respected or rejected – but we’ve also acknowledged that a child’s preference can be a relevant factor.

The child’s wishes do matter, even though there’s not a code section that says that, at a particular age, a child is capable of deciding where, and with whom, she’ll live. A lot of people seem to think that 14 is an age after which a child has a preference. Maybe they’ve heard that on television? I’m not sure. In any case, I hear it a lot.

There’s no specific age in Virginia where we start to give the child’s preference a lot of credit. What we will do, though, is look at the child herself – look at her age, maturity, understanding, and experience. There’s a big difference, after all, in a child wanting to live at dad’s because dad has no rules and will let her play video games all night, than a child who wants to live with one parent over the other because of work schedules, attention, hobbies in common, and so on.

We don’t call children to testify, in most cases, but we do appoint guardians ad litem. In most cases, that’s how a child’s preference will come in. The Guardian ad litem will talk to the child, one on one, over a period of time, and will glean from the child what his or her preference is and why. Ultimately, the Guardian ad litem will then make a report to the court, which may or may not include a specific reference to the child’s preference.

Even though the child’s opinion matters, the child shouldn’t feel like he or she is truly involved in the custody case. Though the child will be aware of the involvement of the Guardian ad litem, they won’t be present in court, won’t be privy to the GAL’s report, and won’t really FEEL the weight of their preference – which frees them from (some of the) the psychological ramifications. (In most cases, of course, it’s still wise to have your child in therapy during this process – but that’s a personal decision.)

What about when one parent is influencing a child’s preference?

This usually comes up in the context of a parental alienation case. Sure, there are plenty of parents who are afraid that their child will choose the other parent, but, in a lot of cases, when we’re talking about a child’s preference, we are talking about it because one parent is concerned that the other parent is using his influence to sway the child’s preference.

Parental alienation cases – cases where one parent tries to undermine the child’s love and affection and relationship with the other parent – are really complicated.

Obviously, this shouldn’t happen, but it also does happen. It happens a lot. Its hard for parents who are going through nasty divorce and custody cases to keep their children completely out of it. My advice would be, though, that if you’re afraid your child’s father will say this about you, make sure that you are very careful about how you talk to your child about her father. Make no disparaging comments, or allow anyone around you to make them. Don’t disparage your ex’s new partner, or her children, or their living arrangements.

If you’re afraid that he is alienating the children from you, you’ll want to talk to an attorney as soon as possible. These cases are complicated and heavily nuanced, so you’ll want to make sure that you’re in as good of a position as possible to be proactive.

For more information, or to schedule an appointment with one of our licensed and experienced Virginia custody attorneys, give our office a call at 757-425-5200.