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DIVORCE & FAMILY LAW
Modification of Custody and Visitation in Virginia
Whether your custody order was entered after a hearing or as a result of an agreement between the parties, it is inevitable that things will change as parties and children move on with their lives. So, what happens if you want to change the custody and visitation order that was entered as a result of your divorce or in a standalone custody and visitation case? Can you modify your custody or visitation order if new circumstances arise?
What if the order was issued when your child was one year old, and now he/she is five years of age and about to start kindergarten? The visitation provisions don’t make sense anymore with his new school schedule, and perhaps the custodial-parent’s work schedule has also changed, and the provisions of your last custody order are not a good fit anymore. What can you do?
The answer is, that depending on circumstances, you can ask for a change in your custody and visitation order. Custody of minor children is based on what’s in their best interest and naturally, that may change overtime. So, Virginia Courts allow for modification of custody depending on circumstances.
What you need to show to modify custody/visitation?
Virginia Code § 20-108 allows for modification of a custody or visitation order when (1) there has been a material change in circumstances and (2) it is in the best interest of your child to modify the custody or visitation provisions (or both) of the order.
Who has the burden of proof?
Generally, the party seeking a change in custody has the burden of proving to the court that there has been a material change in circumstances and it is in the best interest of the child to modify custody/visitation.
What constitutes change in circumstances?
What constitutes a material change in circumstances is very fact specific. According to Virginia Code § 20-108 intentional withholding of visitation may constitute a material change of circumstance. However, the statute is not mandatory and if the custodial parent’s actions were reasonable, the trial court may find no change of circumstances.
As stated before, whether or not there has been a material change in circumstances is very fact specific. Some examples of material changes include: relocation of parent; inability by a parent to work together and cooperate with the other parent and effectively co-parent, a parent has remarried or had another child; the child’s safety is in jeopardy with the custodial parent; a parent has violated the current order repeatedly; or the child’s needs have changed over time, for e.g. change in age, needs, preference etc. Goes without saying, that this is a very short list of circumstances that may constitute a material change in circumstances and there may be uncountable facts that may constitute material change.
What if I do have a material change in circumstances?
Once a Court determines that material change in circumstances has taken place, it has to determine whether a change in custody or visitation order is in the best interest of the parties’ child.
To determine this, the Court looks at the factors within Virginia Code § 20-124.3. These factors include:
- The age, physical and mental condition of the child, giving consideration to the child’s changing needs;
- The age, physical and mental condition of each parent;
- The relationship existing between each parent and child;
- The needs of the child, including the important relationships with siblings, peers and extended family members;
- The role each parent has and will continue to play in the upbringing of the child;
- Each parent’s propensity to actively support the child’s relationship with the other parent;
- The willingness and ability of each parent to maintain a close and continuing relationship with the child and each parent’s ability to cooperate in and resolve disputes with the other parent in matters affecting the child;
- The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such preference;
- Any history of family abuse; and
- Such other factors as the court deems necessary.
If the Court determines that there has been a material change in circumstances since the last custody and visitation order and changing the custody/visitation order is in fact in the best interest of the child, then it will enter a new custody order.
You don’t always have to resort to expensive litigation in order to modify your custody order. The most effective way to get a modification of custody or visitation is by entering into a consent order with the other party. You can negotiate the change with the help of your family law attorney and avoid expensive litigation.
If you believe that you have a material change in circumstances and it is in your child’s best interest to change the custody/visitation order, be sure to speak to our experienced family law attorney at Khanna Law.
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