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Can my child choose which parent to live with in Virginia?

July 11, 2024

One of the most challenging aspects of divorce for parents is determining child custody arrangements, particularly when it comes to deciding with whom the child will live. In some cases, older children may have the opportunity to express their preference regarding which parent they would like to reside with primarily. However, it is important to understand that a child’s preference is just one of many factors that courts consider when making custody decisions, and the child’s best interests remain the top priority.

How does the Court Determine Custody and Visitation?

When determining child custody and visitation, courts will follow the best interest standard as outlined in Virginia Code § 20-124.3. Several factors are considered in determining the best interest standard, including the unique needs of the child, the parents’ roles in the child’s life, and the relationship between the child and parents. Learn more about the best interest standard here.

Per Code § 20-124.3(8), the court is required to 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…”

Age is an important factor. But, it is not the only factor that determines whether the child is mature enough to choose. The judge must decide on a case-by-case And, even if the child is deemed to be mature enough, a child’s preference is just one of several factors that judges must consider when determining child custody and visitation.

How Can My Child Communicate Which Parent They Wish to Live With?

First and foremost, the child should be able to communicate their wishes to their parents. If the child tells one of both parents where they want to live, the parents should discuss and try to find a solution. But, it’s not always that easy. If the parents cannot work it out, one or both parents can file a petitions to have the court decide custody and visitation.

If the case goes to court, you can request that the Court appoint a guardian ad litem (GAL). The GAL serves as the child’s representative and can communicate the child’s wishes to the judge. It’s important to note that the GAL is not exactly the same as a lawyer for an adult. The child is the GAL’s ward, meaning the GAL can advocate for whatever they think is best for the child, even if it is not what the child wants. The Gal will usually share the child’s wishes with the court even if they disagree with the child.

The child may be able speak directly and privately to the judge through an “in camera” interview. This is usually very informal. Often, the judge will bring the child and Gal into chambers and have a conversation with the child about what they want. This removes some of the pressure from the child because they can speak to the judge without the presence of their parents.

Finally, if your child testifies at the custody and/or visitation hearing, they can communicate their desires directly to the court. But, keep in mind, Virginia judges generally disfavour making children testify in custody cases, even in the informal “in camera” interview. Quite often, the better course of action is to work with an attorney to present the evidence to the court in a different way.

Consult a Family Law Attorney to Uncover All Your Options

If you’re facing a child custody or visitation concern, the compassionate family law attorneys at Bourdon & Tortolero – serving Virginia and Washington, DC – have the experience, legal insight, and skill you need to protect your rights, and we’re standing by to help. Learn more by contacting or calling us at 703-997-0036 today.

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