Modification of Custody Orders in Virginia

Posted on January 14th, 2011, by James Livesay in Custody, Family Law. Comments Off

In an ideal world, after the final custody order is entered, all the animosity melts away and families transition seamlessly into their custody arrangement. Unfortunately, this isn’t always the case. As children grow, parties remarry, and priorities change, you may find that you or your children are no longer happy with your custody order.

Virginia Code § 20-108 requires the party petitioning the court for modification of a custody order to prove that (1) there has been a material change of circumstances since the entry of the last order, and (2) it is in the best interest of the children to modify custody.

The change of circumstances may be either positive or negative. A positive change could be a parent’s remarriage or getting a new job with either a higher salary or more flexible work schedule. A negative change could be a child developing behavioral problems, one parent struggling with substance addiction, or a criminal conviction of a parent.

The change of circumstances must take place after the entry of the last order in your case– it cannot be based on testimony or evidence that pre-dates the entry of the last order.

As our prior blog posting, Denial of Visitation and Modification of Visitation Orders In Virginia explained in more detail, a parent’s denial of court-ordered visitation may also be a material change of circumstances allowing for a modification of custody.

In evaluating the material change of circumstances required for custody modification, the Judge will make a factual determination based upon the specific facts of your case. If the Court determines that there has been a material change of circumstance, the Judge will then examine the best interests of the children by examining the ten factors codified in Virginia Code § 20-124.3. These are the same factors that were considered at the initial custody hearing, and include the age of the children; the health, needs, and relationship that each child has with each of their parents; and for any child of sufficient age, the child’s preference as to custody.

If you or your children are unhappy with your current custody arrangement, consult with an experienced family law attorney to explore your options as to custody modification. The experienced custody lawyers at Livesay & Myers, P.C. represent clients in Fairfax, Alexandria, Arlington, Manassas, Woodbridge, Stafford, Fredericksburg and across Northern Virginia. Contact us to schedule a consultation today.

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Attorney James Livesay is a Partner at Livesay & Myers. After graduating from the University of Virginia School of Law in 1998, he began his legal career in the Navy JAG Corps, before entering private practice as a Virginia family lawyer in 2001. Along with partner Kevin Myers, Mr. Livesay founded Livesay & Myers in 2003. Today he advises the attorneys in each of the firm’s three offices.

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