Custody of the Older Teen Child – Is it worth litigating?

Under Virginia law, there is no age at which a minor child is suddenly fully in control of his or her schedule with separated or divorced parents; however, there does come a time when the preferences of a teenager will heavily influence the outcome of any litigated custodial outcome.

Virginia Code Sec. 20-124.3 lists the factors that a judge must consider when ruling on custody. One of them 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 was a time when, pretty predictably, that translated into age 14; however, case law shows that even preteens have in very rare instances expressed a preference. Also, though it’s difficult to quantify, most adults have a sense that 14 year olds in 2019 have been forced to mature more quickly than a child who was 14 in, say, 1989. Therefore, a 12 or 13 year old may be able to articulate preferences well.

No judge will rule exclusively on the preference of a child. For one thing, that is unfair to the child, who might in later life have to deal with feelings of guilt for having disappointed or rejected a parent. The preference is but one of many factors. But a child with a strong preference and some independence may be a candidate for visitation refusal if the schedule differs too greatly from that child’s reasonable preferences.

A competing factor that may make the case worth presenting arises when the teen is the oldest of the minor children. Though there is no law or principle that makes it mandatory, experience teaches that more often than not, judges will keep siblings together. While some judges definitely will not allow the preferences of an older teenager to influence their decision about a younger brother or sister and will create separate schedules for each, a lawyer must think about whether one may influence the other.

Good reasons for a child’s preferences to be given weight can include a more stable home environment, a more available parent, academic or extracurricular goals that only one parent supports meaningfully, and other such concerns that relate to the amount of time spent with a parent.

Conversely, bad reasons for wanting a change of custody or an initial custodial placement will probably ben ignored and may hurt the case of the parent who wishes to assert them. For example, if a 16 year old has been promised a sports car for opting to live with one parent, that transparent bribe will not impress the Court.

A final concern is the manner by which a child’s preferences are made known to the court. Parents should work vigorously to avoid the need for any child of any age to testify. Sometimes it is unavoidable. But judges will also assign some blame to the insensitivity of the parent who unnecessarily calls a child into the courtroom.

Your attorney can help weigh both whether the reasons for a teenager’s preferences are of the type that would influence a judge, and also assess whether calling the child is a net advantage or disadvantage.