Custody and Visitation
A Child’s Preference in Virginia Custody and Relocation Cases
How Virginia courts weigh a child's custody preference under § 20-124.3(8): age and maturity, in-camera interviews, modification, and relocation.
This topic is part of Custody and Visitation in Fairfax and Loudoun.
In this article
In a contested custody case, few questions carry more weight with parents than what the child wants. Virginia law requires the court to consider a child’s preference, but it does not let the child decide. This post explains how Virginia courts treat a child’s stated preference in custody, modification, and relocation cases, how the child’s views reach the court, and where the limits are.
The Statute
Virginia Code § 20-124.3 lists the factors a court must consider in deciding custody and visitation. The eighth is “[t]he 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.” The preference is one factor among ten, and it is weighed together with the others in determining the child’s best interests.
Considered, Weighed, and Never Controlling
The Supreme Court of Virginia has held that “the wishes of a child who has reached the age of discretion, though not controlling, should be considered and given appropriate weight.” Bailes v. Sours, 231 Va. 96 (1986). Both halves of that sentence matter. The court must take the preference into account, and it may not treat the preference as the answer.
The Court of Appeals has made the second point repeatedly. A child’s wishes are “but one factor” in the best-interests analysis, and they do not control the outcome even when they are clearly and credibly expressed. Goodhand v. Kildoo, 37 Va. App. 591 (2002). Where the other statutory factors favor the other parent, a child’s clearly stated preference does not require a different result. Sargent v. Sargent, 20 Va. App. 694 (1995).
A preference can still carry real weight. In Turner v. Turner, 3 Va. App. 31 (1986), the Court of Appeals affirmed a change of custody where the child, an eight-year-old “with above average intelligence” who had lived in both homes, expressed a preference to live with her mother, and the evidence showed her psychological need to do so.
Age and Maturity
There is no age at which a child’s preference begins to count. The statute turns on the child’s “intelligence, understanding, age, and experience,” not on a birthday. The same principle governs whether a child may testify at all: “There is no fixed age at which a child must have arrived in order to be competent as a witness.” Rogers v. Commonwealth, 132 Va. 771, 773 (1922). The child must be able to observe and remember, understand the questions, give intelligent answers, and appreciate the duty to tell the truth. The decision rests largely in the trial court’s discretion.
In practice, maturity often matters more than age. Judges are quick to observe, “I’ve seen plenty of immature 17-year-olds and plenty of mature 12-year-olds.” Years ago, many practitioners worked from a rule of thumb: children under 14 were presumed to lack the maturity to express a meaningful preference, children between 14 and 16 carried no presumption, and children 16 and older were presumed to have it. It is no longer clear that rule of thumb holds.
The evidence that bears on maturity is usually found outside the child’s own words: school performance, behavioral or disciplinary history, any diagnosed mental health condition, and the reasons the child gives for the preference. A preference grounded in a lenient bedtime or a new phone is weighed very differently from one grounded in the child’s relationship with each parent. That evidence has to be developed and presented deliberately, whether the goal is to give the preference weight or to show it deserves little.
How the Child’s Views Reach the Court
A child’s preference can come before the court in several ways: testimony in open court, an interview in chambers, or the report of a guardian ad litem. The choice matters, both for the child and for the record.
In Haase v. Haase, 20 Va. App. 671 (1995), a commissioner in chancery interviewed children aged eleven and six in camera, with the parties and counsel excluded, over the father’s objection. The Court of Appeals affirmed. It held that the record supported a conclusion that the children, “although young, were of sufficient intelligence, understanding and experience to express their views concerning their custody,” and that the procedure protected them “from the potential harm of a formal examination process while obtaining an adequate sense of their needs and preferences as to custody.” The court identified the considerations that bear on how a child’s evidence should be taken: the age and maturity of the children, the matters their testimony would address, the acrimony between the parents, and the likelihood of improper influence.
A Caution About a Child’s Written Notes
Children sometimes come to court with a written list of reasons. The Supreme Court of Virginia’s 2024 decision in Powell v. Knoepfler-Powell, Record No. 230410 (Va. June 27, 2024), shows the risk of relying on one. A nine-year-old testified and adopted parts of notes she had prepared, which the trial court admitted as a demonstrative exhibit. The Supreme Court held that “the trial court abused its discretion in basing a significant portion of its decision on a demonstrative exhibit that was uncorroborated by substantive evidence,” and it reversed in part. A child’s notes are not independent proof of what they say. Whatever the court relies on has to be supported by testimony or other evidence.
Preference and Modification
A child who has grown older and now prefers the other parent’s home is a common reason parents consider asking the court to modify custody. To modify, the parent must first show a material change in circumstances since the last order, and then show that the requested change serves the child’s best interests. A preference by itself may not clear the first step. In Livingston v. Stark, No. CL-2019-850 (Fairfax Cir. Ct. Dec. 18, 2023) (read the opinion), the Fairfax County Circuit Court held that “a child’s preference for a change in custodial arrangements, without more, is not a material change in circumstances if the facts upon which the preference is based have not changed since entry of the order sought to be modified.” The court treated the preference as a best-interests factor to be weighed once a material change had been shown. A circuit court opinion is persuasive rather than binding, but the reasoning is worth taking seriously in a Fairfax case.
Preference in Relocation Cases
The same rules apply when one parent seeks to relocate with the child. The court asks whether the move serves the child’s best interests, and a benefit to the relocating parent counts only if the move independently benefits the child. Cloutier v. Queen, 35 Va. App. 413 (2001). A child’s wish to move, or to stay, is weighed within that analysis. It does not replace it. In Goodhand, a relocation case, the Court of Appeals held that the child’s preference was not controlling even though it was clearly and credibly expressed.
Conclusion
A child’s preference is a factor the court must consider and may not treat as decisive. How much it counts depends on the child’s maturity, the reasons behind the preference, the way the child’s views are presented, and everything else the statute requires the court to weigh. For the broader framework, see our guide to Virginia child custody and visitation, and for how we handle these cases, see our page on custody and visitation in Fairfax and Loudoun.
This article provides general information about Virginia law and is not legal advice. Reading it does not create an attorney-client relationship. The application of the law depends on the specific facts of each case.