One of the most common questions we see is “at what age can a child in Virginia choose which parent they live with?” Parents who ask this question are often hopeful that at age 12 their child will be allowed to choose to come live with them.
The answer, however, is that under Virginia law, children do not have an absolute right to choose which parent they live with, regardless of how old they are. Under Virginia Code Section 20-124.3, the judge in a Virginia child custody case is required to consider 9 separate factors in deciding who the child will live with. You can read the full list.
The child’s preference is number 8 of those 9 factors. The exact wording of the law is: “The 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.” Applying this language literally, two things must be present before the judge can consider the child’s preference.
The first is, that the preference must be reasonable. If the child prefers one parent’s home because that parent does not require them to comply with any rules, the judge could conclude the preference is not reasonable and disregard it for that reason.
The other is that the child must possess “reasonable intelligence, understanding, age and experience to express such a preference….” So, the younger a child, the less weight their preference would be given. The more the child shows intelligence and understanding, the more weight their views will likely carry.
In the case of teenagers, the judges are mindful that a teenage child who is extremely unhappy in the home of one parent may act out and even run away. So the views of teenage children are taken seriously. And, as one judge said in one of my cases, the closer they get to age 18, the more their opinions will matter. In the absence of a strong reason against it, the views of a 17 year old child will probably be respected.
It’s a disappointing answer for many parents who sincerely believe their child would be much better off living with them. In evaluating whether to pursue a court-ordered change of custody, parents in this situation should look at the other factors and evaluate whether any of them favor a change of custody.
If you need legal advice about your Virginia Divorce call us now to (757) 491-0240 or (757) 619-5304