You have a court order that defines your child custody and visitation arrangement with the other parent. That court order says that it is a “final” order. Can you modify your visitation or custody order if new circumstances arise?
The answer to that question is yes. Custody of minor children is always based on what is in the children’s best interests, and those interests may change over time. In Virginia, a court may alter a custody and visitation arrangement as the circumstances of the parents and the benefit of the children may require. Specifically, Virginia Code § 20-108 allows for modification of a custody or visitation order when (1) there has been a material change of circumstances and (2) it is in the best interest of the children to modify custody or visitation.
The material change in circumstances that is required for a court to modify a custody and visitation order is very case specific, but some examples of possible material changes include: a parent has moved; a parent has remarried or had another child; the child’s educational or health needs are not being met; the custodial parent’s situation has changed such that it is not healthy or safe for the child to remain with that parent (e.g. homelessness, mental illness, drug addiction); the custodial parent has withheld visitation without just cause; a parent has violated the current order repeatedly; or the child’s needs have changed over time. This is just a small list of circumstances which a court might find to constitute a material change.
This material change must have occurred since the date of the last court order regarding custody and visitation, and cannot be a matter that was previously litigated or previously known by the parties but not raised at trial.
After the court determines there has been a material change in circumstances, the court must then determine whether it is in the child’s best interests to modify the current order. In making this determination, the court will look to the factors set forth in 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 a court finds (a) there has been a material change in circumstances since the entry of the last order and (b) the best interests of the child warrant a change in the custody or visitation schedule, then the court will enter a new order that modifies the previously “final” custody order.
There is no limit on the number of times which a court can modify its own order. However, you should only bring your matter back before the court when there has been a material change and you believe that under the new circumstances a modification is required to meet your child’s best interests.
If you believe a material change of circumstances has occurred and want a court to review your custody and visitation order, be sure to speak with an experienced family law attorney in your area. Livesay & Myers, P.C. has a team of experienced family lawyers across offices in Fairfax, Arlington, Leesburg, Manassas and Fredericksburg, representing clients across Northern Virginia. Contact us to schedule a consultation today.