When can a child decide which parent to live with in a Virginia custody case?

In the movies, children are often asked to decide which parent they want to live with after a divorce.  In popular culture, too, I think the understanding is there that, at a certain point, a kid can make decisions for himself about where he’ll spend the majority of his time.In the movies, children are often asked to decide which parent they want to live with after a divorce.  In popular culture, too, I think the understanding is there that, at a certain point, a kid can make decisions for himself about where he’ll spend the majority of his time. Though there’s no question that a teenager has some control over where he or she spends his time (especially if the teenager in question has both a driver’s license and access to a reliable car), determining when and if a child can actually choose where he’ll live is a much more complicated question than you might think.

Usually, when moms ask me whether a child is going to be able to choose for himself where he’ll live, they’re asking for one of two reasons.  Either (1) their child has expressed a preference to live with them and not with their other parent, or (2) they’re worried that the child will choose the other parent because of the lack of rules and general discipline present in that household as opposed to the one the child has primarily grown up in.

Either of those sound like you?   If you’re starting to worry about your child having the opportunity to choose where he or she will live in your upcoming custody and visitation case, you’re in the right place.  Let’s discuss.

How do courts decide custody and visitation in Virginia?

First of all, as you probably already know, custody and visitation decisions in Virginia are made based on the best interests of the child standards.  If you haven’t had a chance to read all of the factors, you definitely should—and you can read them HERE.

1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;

2. The age and physical and mental condition of each parent;

3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;

4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;

5. The role that each parent has played and will play in the future, in the upbringing and care of the child;

6. The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;

7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;

8. The 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;

9. Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and

10. Such other factors as the court deems necessary and proper to the determination.

Out of a need to keep this brief (and, of course, related to the topic at hand), I’m not going to discuss each of the ten factors at length, only the one needed to answer the question “When can a child decide which parent to live with in Virginia?”

Specifically, factor number 8 says that “[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,” will be taken into consideration.That’s a big “if,” don’t you think?

It’s not just that the child automatically gets to discuss his or her preference; he or she might be asked IF the court finds that the child has reasonable intelligence, understanding, age and experience to give a preference.  That means that, “I want to live with dad because he’ll let me eat ice cream for dinner,” is less likely to be a vote of confidence for dad’s superior parenting than it is a warning sign that the child is not of suitable intelligence and understanding to make a decision relating to custody.  (To be clear, when I say that the child lacks the intelligence, that’s not to say that the child isn’t smart, it’s that the child doesn’t really have the maturity necessary to make a reasoned, responsible decision.)At what age might the court find that the child is responsible enough to make a decision?Remember—“if”.  It’s not “when” the child is a certain age—it’s if the child demonstrates the requisite amount of maturity and sophistication, the judge may decide to take the child’s preference into account.

There’s no black line rule when it comes to the age of the child, but usually a child’s preference won’t be taken into account at all until he or she is a teenager, at least.  Even then, it’s often not the case, but it’s certainly much more possible if the child is teenaged.

Still, it isn’t usually until the child is 16 or 17 that they can make a real argument either way as it relates to custody and, even then, it’s a difficult position to put a child in. Really, in many cases, that’s the more relevant question.  Is it worth the potential harm to the child in order for them to express their preference?  For even the most strong willed children, a vote for one parent is a vote against another—something that is very difficult, and potentially psychologically damaging, for a child to do. If you’re considering whether it will be reasonable to ask your child’s preference during your custody case, you should discuss your case with an attorney first.

Discuss your child, his or her age and experience, and make a decision about whether to involve the child at all.  My general feeling is that the potential risk of harm is too great to risk involving the child in any kind of real way. In many custody cases, a guardian ad litem (or GAL) is involved anyway.

A guardian ad litem is an attorney appointed to represent the child’s interests to the court, and the guardian ad litem would make a recommendation in a custody case based on home studies, interviews with the parents, and interviews with the child (or children) in question.  It may be that, in your case, the child’s preference is better expressed through the guardian ad litem than through the child’s testimony alone.   Though a child can have a say in a custody case, there’s really no official point at which a child can automatically say with whom he or she would prefer to live—until the child reaches the age of 18.   For more information, or to schedule an appointment with one of our licensed Virginia custody attorneys, give our office a call at (757) 425-5200.

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