When does a child in Virginia get to choose a custodial parent?

Posted on Jun 21, 2023 by Katie Carter

The internet is a dangerous place.  It’s a place where its difficult to tell an expert from a novice, and where each freely, generously, and emphatically give their own opinions.  Sometimes, the two coexist side by side, and it can be hard to determine which is correct.

I can’t tell you how many times I’ve seen – usually in a social media moms group – people who have no idea what they’re talking about assert whatever they feel like asserting about custody and visitation cases in Virginia.

Ethically, the rules are pretty clear.  I’m not allowed to say I’m an ‘expert’ on custody and visitation in Virginia.  Actually, the rules say no attorney can claim an expert designation unless there’s an official expert designation available.  There is not an official “Expert in Family Law” designation, and, so, I can’t (slash none of us can) claim to be an expert in the field.  Still, I’ve been practicing for just about twelve years now – as opposed many of the loudest commenters in these groups, who may (or may not) have been through 1-2 divorce(s) and/or custody cases.

“Kids who are old enough can decide custody and visitation for themselves.”

If I’ve heard it once, I’ve heard it a million times.  There is a preconceived notion out there that in Virginia there is a magical age after which a child is allowed to determine which parent should have primary physical custody.

Let me tell you quite clearly, my friend: there is not.

In fact, quite the contrary.  In Virginia, there is no such age – unless, of course, that age is 18.

There is absolutely no point in time at which a child is unequivocally allowed to tell a court whether mom or dad should have custody.  Not at 5, or 10, or 15, or 17.999999.

As long as a child is under the age of 18 – which, in Virginia, is the point at which a child becomes an adult – the child does not have an official say in custody and/or visitation.

And it makes sense, right?  Who would put such a huge decision in the hands of a *literal* child?  Not the Commonwealth of Virginia, that’s for sure.

A child’s preference MIGHT matter, but probably not in the way that you think.

In contested custody cases, a Guardian ad litem is almost always appointed.  A Guardian ad litem is an attorney appointed by the court to represent the interests of the children.

The Guardian ad litem will interview the parents, meet the children, and conduct home visits.  A Guardian ad litem (or GAL) is responsible for making a recommendation to the court regarding what is in the child’s best interests and that recommendation may or may not include a reference to what the child would prefer.

Does a judge have to follow a Guardian ad litem’s recommendation?

No.  A recommendation is just that – a recommendation.  And the recommendation might not even include a reference to the child’s preference, if he or she feels that the child is not of suitable age or maturity to give such an opinion.  “I want to stay with dad because he lets me play video games all night,” is a good example of a preference that lacks maturity.

It’s up to the GAL what, exactly, to include in the recommendation, and that varies dramatically based on the facts established in the case.  In Virginia, custody and visitation decisions are made based on the ‘best interests of the child’ factors.  Most every state has some version of these factors, but only the specific ones found in the statute in Virginia apply to custody cases here.

Can my attorney – or my ex’s attorney – call my child as a witness to testify?  Or can the judge interview my child in chambers?

It’s super, super rare that we’d call a child to testify as a witness in a custody case.  While you may choose to push for it, I almost always recommend strongly against it.  The potential for damage is just too great.  I don’t even necessarily mean the damage to the child – though I do mean that! – but also the damage to you and your case.  More on this in a minute.

It’s much more likely that the judge would interview your child privately in chambers, but even that is an incredibly rare occurrence.  Even then, too, its not a given that the child’s preference would influence the final determination in any way.  The child is a child, and is therefore not in a position to make such a tremendous decision on their own.

And think about it …  It’s a difficult thing to do.  To put the child through the stress of testifying in court and/or talking privately to a judge, only for them to (1) get what they want and feel empowered to pit the parents against each other whenever it suits them, or (2) not get what they want and feel disempowered, like no one is listening and no one cares.  Either way you slice it, it’s potentially incredibly damaging and not necessary.

What do you mean, it could be damaging for me and my case if I push my child to testify or talk to the judge in chambers?

I don’t want to put words in your ex’s mouth, but one of the things that scares me the most is that your ex would bring a charge of parental alienation against you.

To be clear: parental alienation is not universally regarded as a thing.  But it is a claim used in high conflict cases with an alarming amount of success.

If it looks too much like you’re pushing your child to testify so that he/she will say something bad about dad and you’ll win custody, I think you’re putting yourself at risk.

Most recently, I saw a post on a social media mom group where the mom asked for a ‘pit bull’ of an attorney for her teenager, who says dad’s house is like jail and never wants to go there anymore.  Eeeks!  Why would you post that kind of thing on social media, where anyone – including dad’s attorney!! – could read it?

For one thing, it doesn’t work that way.  The child doesn’t ‘hire’ an attorney, and mom certainly wouldn’t hire one on behalf of the child.  MOM would hire an attorney, if necessary, if there was a material change in circumstances and to modify the existing custody, visitation, and/or child support arrangement that currently exists.  A Guardian ad litem would be appointed; he or she would be the only attorney for the child(ren).

For another, I am concerned, again, about parental alienation.  The way she talks about the child, about what she needs, and about her relationship with her father – it just suggests to me that mom is behaving in a way that would give the court reason to consider parental alienation seriously.

It’s a risky situation to be in.

But MY child is of suitable age, maturity, and understanding to have a preference.

I get it.  As a mom, I really do get it.  I ask my kids’ opinions on all sorts of things, and I often listen and take their perspective into account.

Even from a really young age, it does feel like they’re smart and mature and understand.  They have opinions.  In a lot of things, we can listen to them.

As far as custody and visitation, though, I do sort of agree with the Commonwealth.  Kids are kids, and kids can’t (and shouldn’t) make decisions related to custody.  It’s too much and it’s too hard.  It’s too damaging.  It upsets the power balance, by making a kid think that his or her preference is either all important or completely irrelevant.  It’s making them responsible for adult decisions.

And, frankly, adults get it wrong an awful lot.  So why on earth would we think a child could do better?

Kids don’t make custody decision in Virginia.  I can’t tell you what the rules look like anywhere else, but that’s how it is here.  The closest they could come is having a Guardian ad litem who makes a recommendation that includes a reference to the child’s wishes.

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