Most Virginia divorce and child custody attorneys have been asked this question on many occasions. The fact is, under Virginia child custody law, there is no “magic age” at which the child gets to decide which parent will have custody of him or her. Under Virginia child custody law, the child does not decide on his or her custody at any age. The Court makes the ultimate decision, but the child’s preference can be a significant factor.
Under Virginia’s child custody law, particularly 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.
However, It is important to remember 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. If the Court finds that the preference is unreasonable in a custody case, 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 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, child custody determinations are very fact-driven, and the law gives the Court wide latitude in deciding what is best for the child. Only an attorney knowledgeable in Virginia child custody law can guide you on this vital and frequently asked family law question.
