You have a custody case in court dealing with where the children will live. You know that your children prefer to live with you. How will the children’s preference to live with you matter to the judge in deciding a parenting schedule.
A child’s preference on custody and visitation may be a factor that the court shall consider when determining custody. It is one of the factors the court may consider. A child’s preference is not conclusive. It is merely one of many factors. There are many cases where the court will not consider the child’s preference. There are cases where the court will give the preference little weight.
Let’s look at the law on a child’s preference in a custody case:
The statue containing the factors the court shall consider includes a factor on the children’s preference:
- Virginia Code Section 124.3(8) provides, that the court shall 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.”
The child’s preference must be “reasonable.” This means that the preference has to be supported by good reasons in support of the child’s preference. A child preferring to be with a parent because that parent lets him or her eat ice cream and cake for dinner and go out at night and party on school nights is not a “reasonable” preference. On the other hand, if the child feels closer and more bonded and attached to one parent, his/her preference may be considered. This is because the paramount concern of the judge is to ensure the child’s best interests are served. A child may not have the capacity to know what is best. It is the judge’s job to decide custody, not the child’s. The judge will not delegate the decision of custody to the child.
The child’s preference shall be considered if the child is “of reasonable intelligence, understanding, age and experience to express such a preference.”
There is no specific age that the court uses to determine if the child’s preference should be considered. Rather, the weight a court gives depends on that child: his intelligence, understanding, age, and experience. The older, the more intelligent, articulate, and thoughtful a child, the more weight his opinion will be used by the court in determining custody and visitation.
