Can Children Express Preference in Virginia Custody Proceedings?

Find out how whether courts consider a child's preference in custody and parenting time proceedings in Virginia.

By , Attorney · Cooley Law School
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Separating couples deal with lots of issues. From dividing property and changing residences, to changing your last name. When the couple has children, one issue is usually much more emotional than the others: determining the best custody arrangement for the children.

Parents may have differing views on child custody, and children may have their own opinions as well. In many states, the law requires judges to consider a child's preference when deciding custody.

This article will explain how a child's preference affects custody in Virginia. If you have additional questions about the effect of a child's custodial preference in Virginia after reading this article, you should consult a local family law attorney.

Overview of Custody Decisions in Virginia

If parents can agree on a suitable custody and parenting time (visitation) arrangement, in most cases, the judge will approve it and use it to create the family custody order. Virginia courts determine child custody for separating parents who can't agree on their own. (Va. Code Ann. § 20-124.2.)

The hallmark of every custody case is evaluating the child's best interest. To determine the best custody arrangement, the judge will consider the following factors:

  • the child's age, physical condition, and mental health
  • each parent's age, physical condition, and mental health
  • the child's relationship with each parent, including each parent's involvement in the child's life
  • the child's needs, including the child's relationships with siblings, peers, and extended family members
  • the role each parent has played and will play in the child's upbringing
  • each parent's willingness to support the child's relationship with the other parent
  • each parent's ability to have a close relationship with the child
  • the parents' ability to cooperate regarding the child
  • whether either parent has committed domestic abuse or sexual abuse
  • the child's preference, depending on the child's intelligence and age, and
  • any other factors the court deems relevant. (Va. Code Ann. §20-124.3.)

When Will the Court Consider a Child's Preference?

It's a common misconception that older children can decide which parent they want to live with after a divorce or separation. On the contrary, the court may consider a child's preference, but only if the child has the intelligence, understanding, age, and experience to express a reasonable preference.

There's no specific age when a judge must automatically consider a child's opinion on custody. Courts look to see if the child has the intelligence and understanding to voice a reasonable preference on a case-by-case basis. Children aged 14 and older, are generally old enough and mature enough to express a preference, and in that case, the judge must factor their opinions into custody decisions.

When dealing with younger children, courts may consider a child's preference if the child is between the ages of 8-13, but a judge will need to confirm that the child's preference is reasonable.

One court found an eight-year-old girl to be mature enough to give her preference weight in the custody decision, while other judges have found older children too immature to give their preferences any value.

Judges may also consider the reasons behind a child's custodial preference when determining whether to give the preference any weight. For example, the court won't give much weight to a boy's preference to live with his father because he buys more toys or lets him stay up late. On the other hand, if a child simply feels closer to one parent, the judge is likely to consider the child's preference strongly.

Even if a mature child has a reasonable preference to live with one parent, the court doesn't have to go along with the child's request. If the judge believes it's in the child's best interest to live with the non-preferred parent, the court will rule against the child. If the court believes that both parents are equally suited to have custody, however, the child's preference may serve as a "tie-breaker" in the case.

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

Many judges believe it can be traumatic for children to choose between their parents in front of them. While some older children may testify in the courtroom, it's much more common for a judge to interview the child in court chambers, away from both parents. An "in camera" interview allows the child the freedom to speak candidly but alleviates the pressure of disappointing or hurting one parent by choosing the other. While still difficult, speaking only to the judge in chambers is usually more comfortable than sitting on the witness stand.

When the court interviews a child in chambers, the judge may or may not allow the attorneys to be present, depending on what the judge believes is in the child's best interest. Unless the parents agree otherwise, the court must have a court reporter present to record the interview. The recorded interview becomes part of the case record unless the judge believes that doing so would endanger the child. (Va. Code Ann. § 20-124.2:1.)

When Can a Child Refuse Visitation in Virginia?

Although the law requires judges to consider a mature child's preference in custody proceedings, the child can't refuse visitation with either parent until the child turns 18 (the age of majority). As the custodial parent, it is your responsibility to ensure that your child attends court-ordered visitation with the noncustodial parent.

On the other hand, if a child is refusing to go with the other parent, you're not expected to physically remove your child or physically force them into a car or out of your home. If there's an ongoing problem with your child refusing visitation, and you've tried everything to encourage your child to go, you may need to go back to court to ask for a judge's guidance. A judge may order you, your ex, and your child into family therapy to see if there is way to encourage the visits.

If the current court order no longer meets your child's needs, you can request a review by the court. The law permits the court to modify custody and parenting time orders, but only if the requesting parent can demonstrate that, since the last order, there has been a material change in circumstances that justify modification and that a modification is in the child's best interest. (Va. Code Ann. § 20-108.)

Whether to modify a custody or visitation order is entirely up to the judge. If the judge believes it's in the child's best interest to review the case, the court will re-evaluate the best interest factors before creating a new custody and visitation arrangement.

If you have additional questions about the effect of children's custodial preferences, contact a Virginia family law attorney for help.

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