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When Does the Child Decide?

In my family law practice, I have been asked on several occasions, "At what age does my child get to pick where he or she lives?" There is a common legal misconception in Virginia that there is a certain age when the child makes the decision. That is categorically false. Courts make child custody and visitation determination based on the 10 best interest of the child factors set out in §20-124.3. When factor tests are used the Court determines how much weight to apply to each factor, and often decisions come down to one or two factors being more favorable to one party.

Factor number 8 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." Thus, factor 8 is given much more weight if the child is closer to emancipation age, and if the child is mature and articulate. Additionally, the Courts will likely examine the child's reason for wanting to reside with a particular parent, as often the Court determines the child's motivation not to be in his or her best interest. For example, if a child is desiring to live with a particular parent because that parent is rarely at the home and does not monitor the child's school attendance, the Court will likely have concern that that placement, though the child prefers it, is not what is best for the child.

Once the child reaches the age of adulthood, which is 18 in the state of Virginia, he or she can solely decide which parent to live with, or not to live with either.

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