Can Children Express Preference in Virginia Custody Proceedings?

Can a child's preference affect custody decisions? Find out below.

Separating couples deal with lots of issues, from dividing property, to changing residences, to changing a 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, judges are required 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

Virginia courts determine child custody for separating parents who can't come to an agreement on their own. Judges must consider the following factors when deciding custody:

  • 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 with each other 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.

To read more information about custody decisions in Virginia, see Child Custody in Virginia: The Best Interests of the Child.

When Will the Court Consider a Child’s Preference?

The court will consider a child’s preference when 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, but at least one court has stated that a seven year-old child is too young to have a reasonable preference. Children aged 12 and older, on the other hand, are clearly old enough to have a preference that judges must factor into their custody decisions.

Courts determine whether children under 12 have the intelligence and understanding to voice a reasonable preference on a case-by-case basis; 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 weight.

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 strongly consider the child’s preference.

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 his or her parents. This way, the child doesn’t feel the pressure of disappointing or hurting one parent by choosing the other. While still difficult, speaking only to the judge in chambers is usually a more comfortable environment 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.

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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