Child Preference

One question that often arises in Virginia custody cases is whether a child can simply choose which parent he or she wants to live with. The answer to that question is: maybe.

Virginia Code § 20-124.3 lists the factors that courts must consider in determining child custody and visitation in Virginia. One factor listed is “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.”

This factor does not provide a set minimum age where the court must consider the child’s preference, but instead allows courts to decide on a case-by-case basis, based on an evaluation of the individual child. Courts base that decision on several factors:

1. Age. Perhaps the most important factor is simply the child’s age. Children who are very young can almost always be considered unable to state such a preference, whereas teenagers are often considered old enough to state a preference.
2. Maturity. The court will consider not only the child’s age but also his or her maturity level, which the judge can ascertain from the evidence and testimony of the parents and other witnesses. The court might also personally assess the child’s maturity level, by speaking with the child outside of court, in judge’s chambers.
3. Intelligence. The court will consider the child’s ability to appreciate and understand the preference that he or she states, along with the possible consequences.
4. Experience. The court will consider the child’s exposure to each parent and the environment that each parent presents in their respective home.
5. Basis for Preference. The court can also consider the reasons and rationale behind the child’s decision. Why does the child want to live with one particular parent? If it’s for an inappropriate reason—for example, if that parent allows the child to engage in underage drinking—then the court can reject the child’s preference.

Based on an application of these factors, the court will determine whether the child of “of reasonable intelligence, understanding, age and experience to express” a preference as to custody. If the answer to that question is “yes,” then the child’s preference becomes one factor the court will consider in determining custody, along with the other factors listed in § 20-124.3.

Even an older child is not allowed to automatically decide the custody question himself or herself. Instead, the court may place as little or as much weight on the child’s preference—or any other factor—as it deems necessary to reach a decision that is in the child’s best interests. However, in general, the older the child, the more weight the court is likely to give the child’s preference.

Communication of a Child’s Preference

All of which leads to the question: if the court is going to consider the child’s preference, how will the child communicate that preference to the judge?

As a practical matter, judges do not like to place children in the uncomfortable and potentially very unhealthy position of having to choose between two parents. Courts avoid requiring a child to side with one parent or testify against a parent whenever possible.

A child could theoretically be subpoenaed by either party to testify; however, this is a very bad idea in most custody cases, for two reasons. First, it can backfire on the parent. Many judges follow the mantra that “the party who calls the child as a witness, loses.” This is presumably based on a theory that a parent who is willing to put the child on the witness stand is not really pursuing the child’s best interest. Second, it can create a great deal of stress for the child, and can irreparably harm the relationship between parent and child.

One exception—where a parent should certainly consider calling their child to testify—would be where the child has experienced or is danger of abuse, or there is some other compelling, health-and-safety-related reason to do so (for example, blatant dangerous drug use in the child’s presence).

In cases where a child is called to testify, the court may require their testimony to take place in open court, or may allow it to occur behind closed doors, in judge’s chambers. That choice will vary from judge to judge and jurisdiction to jurisdiction.

One way for a child’s preference to be communicated to the court without the child having to testify is through a guardian ad litem (GAL). The court has the authority to appoint a GAL in any child custody case in Virginia. A guardian ad litem is an attorney who represents the child’s interests, and is charged with conducting a full investigation: speaking to the child, the parents, any relevant family members, friends, teachers, doctors, daycare personnel, etc. The GAL then makes a recommendation to the court as to a custody and visitation arrangement that would be in the best interests of the child. The guardian will likely take into consideration the preference of the child and make that known to the court as well. In that respect, the court’s appointment of a guardian ad litem will give the child a “voice” in the case without requiring the child to testify in open court.

However, Virginia law does not require the court appoint a guardian ad litem in each custody case, and many cases are heard without the involvement of a guardian. Whether the court will appoint a guardian varies greatly by jurisdiction. Some jurisdictions, in the Hampton Roads area and elsewhere, routinely appoint GALs. Other jurisdictions, like Fairfax County, do not appoint guardians absent special circumstances, unless the parties are representing themselves (“pro se”).

To sum it all up: how much weight the court will give a child’s preference, and how that preference might be communicated to the judge, can vary greatly from case to case in Virginia.

For much more information on how Virginia courts decide custody cases, see our Guide to Custody in Virginia.

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Livesay & Myers, P.C. has a team of experienced custody lawyers across five office locations: in Fairfax, Arlington, Ashburn, Manassas and Fredericksburg-Stafford. Be sure to read our client reviews, then examine the profiles of each of our attorneys to find the one who is the best fit for you.