Modification of Custody Based on Child’s Custody Preference

According to a recent Fairfax County Circuit Court’s decision in Livingston Jr. v. Stark (VLW 023-8-093), which appears to be a matter of first impression, a request to modify custody arrangement based solely on a child’s preference does not rise to a level of a material change in circumstances, provided nothing else has changed from the time of the entry of the existing custody order and the inconvenience claimed by the children existed at the time when the original custody order was agreed upon by the parents.

In this case, Judge Bernhard, who was the presiding judge in this case, stated:

“Allowing a child’s preference alone to constitute a material change in circumstances would open the door for parents to pressure and manipulate their children into saying they wish to live with one parent over the other.”  “Additionally, if a child’s preference were enough, children may often change their minds as to their preferences without thinking about what is truly best for them, or may change their minds based on interactions with their parents at any given time, thus unduly drawing courts into more family disputes.”

Judge Bernhard also analyzed this issue from a statutory point of view.  Judge Bernhard argued that his ruling is consistent with Va. Code § 20-124.3, which contains the list of factors to determine the best interests of the child with the reasonable preference of a child being one of them.   Thus, it would be redundant to consider preference of a child twice, first in deciding whether a material change in circumstances has occurred and then if said change is in the best interest of the child.   Consequently, “if a child’s preference were important enough on its own to be a change in circumstances, then that factor should be enough on its own for the best interests of the child analysis.”

If you or someone you know is looking to petition for child custody or child custody modification, don’t hesitate to contact us.