Child Preference in Virginia Custody and Visitation Cases

When a couple decides to separate and pursue a divorce, there are countless questions and issues that can arise. However, there are also some difficult questions that await the teenage child or children of divorcing parents. Perhaps the most difficult question to answer is: “Who do I want live with after Mom and Dad are divorced?” The answer to this question can go a long way towards determining the final custody and visitation arrangement for that child.

In making a custody or visitation determination, a Virginia court will consider what is in the best interests of the child, according to the factors laid out in Virginia Code Section 20-124.3. One of the most important factors listed in that code section 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.” Within this factor, there are several considerations that a court will take into account, including:

1. Age. Virginia law does not provide a minimum age where a child is deemed able to make a preference about who he or she wants to live with; however, children who are very young can almost always be considered unable to state such a preference. Although factors other than age will still be considered, teenagers are often considered old enough to state a preference.
2. Maturity. The maturity of the child will also be considered when determining if the child’s preference should be considered. The child’s maturity level can be judged by the evidence and testimony of the parents and other witnesses. It can also be assessed by a judge, who may speak with the child outside of court, in judge’s chambers, about the child’s preference.
3. Intelligence. The child’s ability to appreciate and understand the preference that he or she states, along with the possible consequences, will be considered.
4. Experience. The child’s exposure to each parent and the environment that each parent presents in their respective home, will be considered.
5. Basis for Preference. The reasons and rationale behind the child’s decision will be considered. Children can often change their minds, which, depending on the facts and circumstances, can also be considered.

Although it may place the child in a difficult and trying position, the child’s preference can often be a determining factor in the custody and visitation decisions that a court will make. The court will need to consider the above-listed factors when determining if the child’s preference should be considered, and, if so, how much weight that preference should be given.

From offices in Fairfax, Manassas, Ashburn and Fredericksburg, the child custody lawyers at Livesay & Myers represent clients throughout Northern Virginia. If you are facing a custody or visitation dispute and would like more information on how your child’s preference may affect your case, contact us to schedule a consultation today.

See also: Communication of a Child’s Preference in Virginia Custody Cases