Can Children Express Preference in West Virginia Custody Proceedings?

When parents of minor children divorce or separate, the split is hard on parents and children alike. The parents' separation may require the parents and kids to move residences, divide property, and figure out custody. In West Virginia, your child's custody wishes could affect the outcome of your case.

This article explains the impact of a child's custody preference in West Virginia. If you have additional questions about custody in West Virginia after reading this article, you should consult a local family law attorney.

West Virginia Child Custody Laws

In West Virginia, parents are free to reach their own agreements regarding custody as long as their agreement meets the child's needs. When parents can't agree, a judge will design a custody arrangement that serves the child's best interests.

Parenting time (sometimes called "physical custody) and decision-making responsibility (sometimes called "legal custody") will be part of any custody order. Parents can split decision-making responsibilities and parenting time (called "joint custody") or a judge may award one parent sole parental responsibility and decision-making over the child. Even in cases where one parent has majority parenting time, the other parent is still entitled to regular visits with his or her child. W. Va. Code § 48-9-206 (2020).

Understanding a Child's Best Interests

If your custody case goes to trial, a judge will assess your child's best interests by considering the following factors:

• the child's relationship with each parent
• each parent's overall stability
• each parent's role in the child's upbringing and parenting obligations
• the child's relationship with siblings and extended family members
• the parents' geographical proximity
• the child's emotional, educational, and physical needs
• each parent's physical and mental health
• the child's custody preferences, if of a sufficient age and maturity
• either parent's history of domestic violence, and
• any other factor relevant to the child's best interests.

To learn more about custody decisions in West Virginia, see Child Custody in West Virginia: The Best Interests of the Child. See also W. Va. Code § 48-9-102 (2020).

At What Age Can A Child Choose Which Parent to Live With in West Virginia?

A judge can overrule a child's preference at any age; however, the preferences of older, mature children are given added weight in custody proceedings. West Virginia custody laws generally consider the preferences of children 14 and older to be well-reasoned and sufficiently mature. Children younger than 14 can have their preferences heard as well, but it will be up to a judge to decide how much weight to give a younger child's preference.

The court must make some finding as to the child's maturity before deciding whether to incorporate the child's preference into the custody decision. For example, a judge in one case spoke to a 12 year-old boy and determined he was a good student, and expressed mature reasons for preferring to live with his father. Based on the boy's well-reasoned preference, along with other relevant factors, the judge granted the boy's custodial preference to live with his father. However, in another West Virginia custody case the judge decided that a ten and 11-year old were too immature to express a custody preference. The two children wanted to live with their aunt, rather than their mother. The court decided that the children's age, along with their emotional immaturity meant that their preference should not be a factor in the custody decision.

Even if a child is mature and states a reasonable preference, the judge doesn't have to follow that preference. A child's best interests – not his or her wishes – will control the outcome of your custody case. A judge simply needs to consider the child's opinion along with the other custodial factors. If the judge believes the child is better off with the non-selected parent, the court won't follow the child's preference when granting custody.

Do Children Have to Testify About Their Custodial Preferences in Court?

In most cases, your child won't testify during a custody trial. West Virginia judges do their best to keep children out of the courtroom and out of their parents' custody battles. However, there are several ways a judge can still consider a child's preference while keeping the child out of court.

For example, a judge may appoint a custody evaluator or guardian ad litem in your case. These trained professionals will interview parents and children separately. In both cases, they will represent their findings to a judge. A guardian ad litem, unlike a custody evaluator, acts as a child's voice in court.

Alternatively, a may conduct an interview with the child in court chambers, outside of the parent's presence. This way, the judge can minimize some of the pressure a child might feel testifying in the courtroom. The parents' attorneys and a court reporter will attend an in chambers interview and the court reporter will prepare a formal transcript of the interview.

What Age Can a Child Refuse Visitation in West Virginia?

Custody orders stay in place until a child reaches 18 or is emancipated. A judge may order a visitation or custody arrangement that doesn't align with a child's preference. For example, a child may not want to have visits with an estranged parent. There's no set age when a child can refuse visitation. Rather, parenting time and visitation schedules are designed with a child's interests in mind and are meant to foster a relationship between the child and both parents.

Each parent is obligated to encourage visitation between the child and other parent. A parent of a young child plays a big in role in making visits happen between a toddler and the other parent. However, it can be difficult to force a teenager to attend visits. A judge won't threaten or penalize a teen who refuses visitation, but the judge will encourage the child to foster a relationship with the other parent for the child's own benefit.