Parents seem to have a misconception that once a child turns a certain age, he or she can choose the parent with whom he or she wishes to live. We often hear, "my son or daughter is 12 years old and wants to live with me." Some parents, hearing such a remark, want to file a motion to amend an existing custody order based on the child's comment alone. However, a child, subject of a custody order, under age 18, can make no decision as to where he or she lives.
Virginia Code Section 20-124.3 lists ten factors that the Court must take into consideration when determining custody and visitation. One of the factors 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." There is no set age designation. If the child possesses these qualifications, then the Court may consider the preference of the child. However, it is only one of ten factors that the Court weighs in determining what is in the child's best interest.
In order to succeed on a motion to amend custody or visitation, the moving party must show two things: (1) a material change in circumstances has occurred that warrants a change in custody or visitation; and (2) the change in custody is in the child's best interests. The fact that a child is older and has the desire to live with one parent over the other may not be a material change in circumstance that would warrant a change in custody or visitation.