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In Virginia, the determination of physical custody is made by a Court after considering a number of factors that are set forth in Section 20-124.3 of the Virginia Code.  One factor 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 are important components of this factor.  First, a child’s preference is not the sole determining factor; it is one to be considered along with the other factors set forth in the Code.  Second, there is no specific age that governs when a child can express a preference; a 16 year old child who does not have the appropriate intelligence, understanding, maturity may not be able to express his or her preference and a 12 year old who is mature, intelligent and demonstrates understanding may be able to express a preference.  Third, in many cases, the child does not come to Court to talk to the judge.  Although there are provisions that allow for that mechanism, many times a Court will appoint a Guardian Ad Litem who is an attorney to represent the child and who presents the child’s case to the Court through evidence as part of the custody determination.  Although parents may feel like their children should be able to have a say in where they live, the Courts must consider the best interest of the child based on all of the information, which may or may not include what the child wants and who the child wants to live with.

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