Legal Question in Family Law in Virginia

Custody Issue

My husband has phsical custody of his 6 year old son and he and his wife have joint custody. She deserted them when his son was three years old. His son visits his Mother every other weekend. At what age can a child express where he would like to live? My husband's son says that if his Father dies he wants to stay with me. He doesn't feel comfortable at his Mother's house. Of course, this is the only home he has ever known and he's established at his school and has many friends. I've known him since he was born and have taken care of him since he was three years old. We are very close and he calls me Mom. If my husband passes away, what recourse do I have to possibly get custody of him and have him live with me. At what age can he tell the court where he wants to live. Do I have any chance at getting custody? Can my husband specify anything in his will? Thank you for your advice and help in this matter.l

Asked on 4/05/06, 1:40 pm

2 Answers from Attorneys

Tiziana Ventimiglia Tiziana Ventimiglia, Attorney at Law

Re: Custody Issue

Your situation is not easy at all and not common. Parental rights stay with parents... not with stepparents. However, there are at times circumstances where a step parent can petition the court for custody, especially when the surviving parent is not a good parent. Having said so, proving that a parent is not fit for custody is not easy and most likely that parent is still a fit parent even though he/she may not be "the best" parent in the world. The court would look at the totality of circumstances and apply the standard of "what is best for the child". This is why there is a small chance that you may prevail over a natural parent, especially if you have a strong, proven relationship with that child. A court may even appoint a guardian ad litem to help him/her reach the right decision for the child. The wishes of a child when it comes to custody are sometimes taken into consideration, but they would not be the sole factor: again the judge would look at the totality of circumstances. Adoption is another option if the mother is willing to let go... but something tells me that this would not be the case for step child. A will is not determinative... it is only indicative of a wish when it comes to custody.

I wish you the best.

Tiziana Ventimiglia

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Answered on 4/05/06, 3:39 pm

James Wilson James H. Wilson, Jr., Attorney & Counsellor at Law

Re: Custody Issue

You should consult with a lawyer licensed in Virginia as to the applicability of the controlling law to the facts of your case. The following is general legal information on when a child can express a custody preference in Virginia.

The guiding principle in child custody and visitation cases is the best interest of the child. The judge will try to do what is best for the child, regardless of what the child thinks is best for him or herself. In other words, the wishes of the child are not controlling. There is no set age of discretion where the child’s preference will be considered. A court may consider the reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express a preference. In making this decision, the court will consider the following factors: the age and maturity of the children, the matters to be brought forth in their testimony, the acrimony between the parents, and the likelihood of improper influence by one or both of the parents on the children's testimony. Haase v. Haase, 20 Va. App. 671, 460 S.E.2d 585 (1995).

The preferred method for receiving the child’s preference would be for the child to express his or her preference in an in camera interview, in the judge’s chambers, instead of in open court in the presence of the parents. To protect the procedural rights of the parents, a judge will either allow the parent’s lawyers to be present or have a court reporter transcribe the interview as part of the record.

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Answered on 4/05/06, 4:03 pm

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