Virginia courts decide custody based on the best interests of the child. There are several factors, set out in Virginia Code § 20-124.3, that a court examines when deciding what type of custody arrangement is in a child’s best interest.
One of these factors is the reasonable preference of the child. Some parents interpret this to mean that a child can choose which parent they want to live with, especially when they reach a certain age, but this is not necessarily true.
A court does not need to consider a child’s wishes
First, the law states that a child’s reasonable preference is considered if the court finds the child possesses reasonable intelligence, understanding and experience to express their wishes. A court may also consider the age of the child.
Therefore, although this is a factor, there is no requirement the court consider this factor if it determines the child is not old, intelligent or experienced enough to properly express what they want.
Additional custody factors
Next, a child’s preference is just one of many factors. Some other factors, such as the caregiving role each parent has traditionally played in the child’s life, focus on each parent’s ability to care for the child. Other factors focus on prior conflict or abuse.
If a child states they want to live with one parent, but there is evidence of prior child abuse by that parent, it is likely a court is not going to view a child living primarily with that parent as being in the child’s best interest.
Children should not always be forced to choose
It is never a good idea to base your entire custody strategy on what your child wants. Your child could be capable of clearly expressing that they want to live with you, but there is no guarantee the court will want to know this, much less rely on it to make a custody ruling.
Additionally, putting a child in the middle of a custody dispute could have a negative effect on them. It is usually assumed that regular contact with both parents is in a child’s best interest. Asking a child to choose a parent is often frowned upon by courts.