Child’s Preference in Custody and Relocation Cases (Part 2)
In the complex and emotionally charged landscape of child custody and relocation cases, the preference of the child can significantly influence the court’s decisions. Virginia courts take into account a variety of factors to determine what is in the best interests of the child, with the child’s expressed preferences being a pivotal element in certain cases. This blog post explores how a child’s preference is evaluated in Virginia custody and relocation cases, highlighting relevant case law and the legal standards for determining competency.
Legal Framework for Considering a Child’s Preference
To begin, Virginia courts always prioritize the best interests of the child in custody and relocation cases, as outlined in Virginia Code § 20-124.3. Among the ten factors considered, a child’s reasonable preference is given weight, particularly if the child is of sufficient age and maturity to make an informed decision. Below are some relevant cases interpreting that statute.
Case Law on Child’s Preference in Custody Decisions
Turner v. Turner
In Turner v. Turner, the Court of Appeals recognized the competency and sufficient intelligence of an eight-year-old girl, honoring her preference to live with her mother. The court emphasized that the child’s ability to express a reasoned preference was a significant factor in its decision. (3 Va. App. 31, 36-37 (1986))
Haase v. Haase
The case of Haase v. Haase involved children aged eleven and six, who were allowed to testify in camera to provide the court with an adequate sense of their needs and preferences regarding custody. The court found this approach suitable to understand the children’s genuine desires without the influence of external pressures. (20 Va. App. 671, 683 (1995))
Powell v. Knoepfler-Powell
In Powell v. Knoepfler-Powell, a nine-year-old girl’s testimony in court about her custody preference was deemed credible. The Court of Appeals upheld the trial court’s decision, finding that the child was of sufficient age and maturity to testify, and there was no error in allowing her to testify in open court. (No. 0853-22-4, 2023 WL 3470090, at *8-9 (Va. App. May 16, 2023))
Competency of a Child to Testify
The primary basis for excluding a child’s testimony is incompetency. The Virginia test for determining competency, as outlined in Rogers v. Commonwealth, requires that the child must have sufficient mental capacity to observe and recall the events they testify about, understand questions posed, and provide intelligent answers. Additionally, the child must possess a sense of moral responsibility to speak the truth. Courts exercise discretion in making competency determinations, which can only be overturned if there is a manifest error. (Rogers v. Commonwealth, 132 Va. 771 (1922))
Application in Child Relocation Cases
In child relocation cases, the child’s preference can also play a crucial role. When one parent seeks to relocate with the child, the court evaluates how the move will affect the child’s relationship with both parents and whether it serves the child’s best interests. A child’s preference to stay or move can significantly influence the court’s decision, provided the child is of an age and maturity where their preference is considered reasonable.
For a more detailed understanding of child custody and visitation rights in Virginia, please refer to our comprehensive guide: A Comprehensive Guide to Child Custody and Visitation.
Conclusion
The role of a child’s preference in custody and child relocation cases is a critical, yet nuanced aspect of family law in Virginia. Through cases like Turner v. Turner, Haase v. Haase, and Powell v. Knoepfler-Powell, Virginia courts have demonstrated the importance of considering a child’s reasonable preference when making custody decisions. Ensuring that the child’s voice is heard, while maintaining the integrity of their testimony through competency evaluations, is essential in achieving outcomes that truly reflect the best interests of the child.
At Curran Moher Weis, P.C., we are committed to providing expert legal guidance in navigating these complex issues. For more information and personalized legal assistance, visit our website at www.curranmoher.com.
