Does My Child Have a Say in My Custody Case?

Going through a divorce is challenging enough, but when you add in the issue of determining the custody of a shared child, a divorce case can be a miserable thing to have to navigate. What can be even more challenging and emotional for a parent is the idea that their child may be asked to express a preference regarding with which parent they want to live, something that no parent wants to have to ask their child, or hear the response to if they are not the parent selected.

If you are in the midst of Virginia child custody case, it is important that you understand what factors a judge may consider when determining custody, as well as whether or not your child has a say. For more detailed and precise information, contact Olmstead & Olmstead, P.C. today to schedule a consultation.

The Preferences of Your Child May Be Considered

Section 20.124-3 Best Interests of the Child; Visitation, provides a list of all of the factors that a judge is to consider when determining a child custody/visitation case. Factor number eight reads that a court is to consider:

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.

Because the statute does not provide an exact age at which a child’s preference may be considered, a judge must use their own discretion.

It is important to note that in a child custody case where the child’s preferences are considered, the child will not be put on the stand and asked with which parent they want to live and be forced to provide an answer in front of the court. Rather, if a judge believes that a child may be reasonably able to express preferences, the court will likely conduct an in-chambers interview. Essentially, this means that the judge (or another court representative) and the child will meet, and the child will be provided with an opportunity to present their wishes. A guardian ad litem, which is an attorney that is appointed by a judge to represent a child during a custody/visitation case, will likely play a role in this process, as well.

How Much Weight Does a Child’s Preference Carry?

One must remember that a court does not always follow a child’s wishes. In fact, the court considers numerous factors, including the physical and mental abilities and needs of the parents, each parent’s ability to provide for the child, each parent’s willingness to foster a relationship between the child and the other parent, and more. The court is obligated to make a custody decision that is within the best interests of the child; it is not uncommon for the court to find that what the child’s wants are not necessarily what is within the child’s best interests. As such, a court may deviate from the child’s wishes when appropriate.

What You Should Do if You Are Seeking Custody of Your Child

The best thing that you can do if you are seeking custody of your child is to attempt to reach a parenting plan and time-sharing/custody agreement with your child’s other parent outside of court. This allows you and your child’s other parent to have a say in what you want, and form an agreement that works for everyone. It can also reduce pressure on the child to say what they want, save you money in court costs, and ultimately put the decision-making power in your hands; when you go to court and ask for a judge to make decisions regarding custody, you lose a lot of autonomy and power.

Of course, if going to court is inevitable, you should hire an experienced Virginia child custody attorney to represent you during the process. An attorney will work to serve your best interests, and advise you throughout your entire case.

At Olmstead & Olmstead, P.C. our skilled Virginia family law team has the compassion and experience you are looking for. To schedule a consultation with us today, contact us at (703) 361-1555 or through our online contact form.