Does Your Child’s Preference Matter In Your Custody Battle?

A common question that clients ask is whether their child gets a say in where they will ultimately live or how much time they will spend with each parent. I often hear from clients that their child doesn’t want to go to the other parent’s house or that the other parent doesn’t engage with their child when they are over for visitation. So, does your child’s preference matter in the court’s decisions regarding your custody or visitation? 

The short answer is yes, but the impact it will have will vary on a case-by-case basis. One of the best interest factors that a court must use in making a custody or visitation determination is the preference of the child, based on the child’s maturity level, intelligence, understanding, age, and experience. This means that the preference of a nine-year-old who wants to live with his dad will generally be considered much less heavily than a sophomore in high school who wants to live with his dad.

The question next becomes, if your child does have a clear preference, how does it get expressed in court? Will your child have to testify in front of the judge? 

Appearing in court can be a traumatic experience for an adult, let alone for a child. However, there is a way for a child’s interests to be represented in court without them having to come to court. Virginia law has created a special position called a guardian ad litem that exists in juvenile courts to solely represent the interest of the child. The guardian is a licensed attorney who will conduct their own investigation during your custody and visitation case. Often, the guardian will meet with the parents at an in-office appointment; conduct home visits; review school, police, Child Protective Services, and medical records; speak with the child’s counselor; and meet with the child one on one. At the final hearing, the guardian will submit either a written or verbal report recommending what they believe to be in the child’s best interests. Importantly, they may also articulate the child’s preference as part of their final report to the court. 

What should you do if you believe that your child has a preference and needs to be heard? Here are a few points to consider.  

1.     Try not to discuss active court proceedings with your child. While children are often very astute and can tell when something is going on, you need to focus their attention on what is important in their lives: school, friends, and being a kid.

2.     If a guardian is selected in your case, it is important to reach out to this person as soon as possible and develop a rapport. Guardians often have a busy caseload, so don’t rely on them to come and find you.

3.     During your initial meeting with the guardian, come prepared. Bring school records, photos, and any evidence that you believe the guardian needs to review for your case.

4.     Finally, and most importantly, consult with an experienced family law attorney early in your case. 

If you or someone you know is facing a family law issue, please call me at 804-320-6600 or email me at jbaez@hmalaw.com for more information.

This post is provided as an educational service and should not be construed as legal advice. Readers who need assistance with a legal matter should retain the services of competent counsel.