When Can My Child Testify In Court In A Custody/Visitation Case About Where He/She Wants To Live?

By: Cheshire I. Eveleigh

I am often told by clients that their child is 12 years old (or fill in the blank with any age 12 or older) and that their child can decide where he or she wants to live. While some states may have statutory or case law setting forth the age after which a child may testify in court about their wishes on custody or visitation, Virginia has no “magic age” in any cases or statutes. Virginia Code Section 20-124.3 sets forth the factors by which a judge is to determine the best interest of the child in cases involving custody and visitation. 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.” As you can see, the statute doesn’t state a particular age, but leaves it up to the judge to decide if the child is “of reasonable intelligence, understanding, age and experience to express such a preference.” As a practical matter, most judges in the Hampton Roads area would not interview a child until that child was at least 15 years old.

If the judge decides to interview the child, which they do not do very often in the Hampton Roads’ courts, there is a procedure that the judge can follow to conduct the interview. The judge can choose to interview the child “in camera,” that is outside the hearing of the parties to the case or their attorneys. If the judge decides to conduct an “in camera” interview then he/she has to follow the requirements of Virginia Code Section 20-124.2:1. That statute says that the judge shall prepare a record of the interview and the record shall be made a part of the record of the case unless the judge decides that in doing so, it would endanger the safety of the child. Usually, the record is prepared by having a court reporter present for the interview. If a guardian ad litem was appointed to represent the child, the guardian would be present for the interview.

Before you insist that the judge interview your child about where he/she wants to live, it is important that you talk to your attorney about the consequences of that request. There may be very good reasons not to make such a request including the pressure the process may impose upon the child, regardless of the child’s age.