Legal Question in Family Law in Virginia

Re: Oldest child wants to live with non-custodial parent

You should consult with a lawyer licensed in Virginia as to the applicability of the controlling law to the facts of your case.

The guiding principle in child custody and visitation cases is the best interest of the child. The judge will try to do what is best for the child, regardless of what the child thinks is best for him or herself. In other words, the wishes of the child are not controlling. There is no set age of discretion where the child�s preference will be considered. A court may consider the reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express a preference. In making this decision, the court will consider the following factors: the age and maturity of the children, the matters to be brought forth in their testimony, the acrimony between the parents, and the likelihood of improper influence by one or both of the parents on the children's testimony. Haase v. Haase, 20 Va. App. 671, 460 S.E.2d 585 (1995).

The preferred method for receiving the child�s preference would be for the child to express his or her preference in an in camera interview, in the judge�s chambers, instead of in open court in the presence of the parents. To protect the procedural rights of the parents, a judge will either allow the parent�s lawyers to be present or have a court reporter transcribe the interview as part of the record.