It is a question that most Virginia divorce and child custody attorneys have been asked on many occasions. The fact is, under Virginia child custody law, there is no “magic age” at which the child gets to make the decision as to which parent will have custody of him or her. In fact, the child does not make the decision on his or her own custody at any age under Virginia child custody law. The Court makes the ultimate decision, but the child’s preference can be a very important factor.
Under Virginia’s child custody law, in particular Section 20-124.3, the Court must consider “[t]he 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 is not the only factor the Virginia courts must consider in child custody matters, but it does tend to become increasingly important the older a child gets.
It is important to keep in mind, however, that the child’s preference in a Virginia custody case must be a “reasonable” preference. For example, a child may prefer to be in a parent’s custody because that parent is overly permissive and allows the child to engage in harmful behaviors, and if the Court in a custody case finds that the preference is not reasonable, it does not have to give weight to the child’s desire in its custody determination.
Since there is no specific age at which a child “gets to decide” on his or her own custody under Virginia law, it is vitally important to discuss this issue with your Virginia custody attorney and get his or her opinion on the role that the child’s preference may or may not play in your particular custody case. As with so many decisions under Virginia family law, the determination of child custody is a vert fact-driven determination, and one which the law gives wide latitude to the Court in deciding what is best for the child. Only an attorney knowledgeable in Virginia child custody law can give you proper guidance on this important and frequently asked family law question.
