When divorcing parents contest custody over their children, Virginia law requires the judge to decide the matter based on what is deemed to be in the children’s best interests. In reaching that determination, a court can consider a child’s preference for living primarily with one parent or the other, but only if the court is convinced that the child is of reasonable intelligence, understanding, age and experience to express such a preference. Unlike in some other states, there is no specified age at which a child’s preferences will be treated as conclusive.

A child’s preference is only one of 10 factors that a Virginia judge must weigh in making a custody decision. Other factors include the child’s age, the role that each parent has played in the child’s care and upbringing and the ability and willingness of each parent to provide for the child’s emotional, intellectual and physical needs going forward.

As far as the court considering the child’s preferences, the threshold question is whether the child is of suitable age and maturity to give cogent reasons. This is typically answered with the help of a guardian ad litem (GAL). A GAL is a court-appointed, licensed attorney for the child. He or she meets with the child and with each parent and conducts home visits, all with a view toward finding out what custodial arrangement might serve the child best interests.

Part of the GAL’s analysis can be the child’s ability to understand the divorce situation, to distinguish between possible post-divorce scenarios and to express opinions about which they would favor. But the GAL will also endeavor to find the motivations for the child’s expressed preferences and to evaluate whether they constitute valid reasons. For example, if the child favors one parent because they are more lenient about nutritional and study habits and bedtimes, that probably is not in the child’s best interests. The GAL will also seek to ascertain whether either parent has tried to sway the child’s opinion.

The responsibility of the GAL is to present the judge with a child custody recommendation that is objective and based solely on factfinding. The child’s preferences may or may not affect or be included in that recommendation. The judge is not bound by the GAL’s recommendation but generally gives it great weight. Rarely does the judge seek the child’s own testimony, in court or in chambers. A family court attorney can assist a parent in making the most compelling case possible for primary custody.

Harding, Harding & Harding Attorneys at Law, with offices in offices in Virginia Beach, Chesapeake, and Norfolk, has over 30 years of experience representing Virginia parents in custody cases. Call 757-499-2600 or contact us online for a free initial consultation.