When Can a Custody or Visitation order Be Changed?
No judge or attorney can foresee all circumstances that may arise down the road, when child custody arrangements are initially determined. The reality of most child custody arrangements is that they only work under the situations in place at the time they are put into effect. People move, they remarry, and job situations change. Sometimes, the behavior of a parent requires modification of a child custody arrangement. Typically, amendments to custody or visitation orders will be made to ensure that the bests interests of the children are preserved. If you are seeking a modification of a child custody or visitation order or agreement, working with a knowledgeable and experienced attorney can make the process far more manageable.
What is the Legal Basis for Modification of an Existing Child Custody Order?
In order to modify an existing custody or visitation order, the court must find that there has been a “change in circumstances” since the date of entry of the last order. The change must be material to the current order or agreement, not just a trivial issue. If one party has become unfit to have the same level of contact with the child that they have currently, the court may find this is a material change. Similarly, if one party has obstructed contact with the other parent, has alienated the child from the other parent or has acted irresponsibly such as to endanger the child, the court may also be compelled to act. Finally, the court may also find there has been a material change where one party has moved, creating a distance between the parties that makes the current arrangement unworkable. Once a change in circumstances is proven, the court then determines whether a child custody or visitation modification is necessary.
Factors Considered By the Court in Modifying Child Custody or Visitation.
When the court is considering modification of child custody or visitation orders, it applies the “best interests of the child” standard, as set forth in Virginia Code § 20-124.3. The factors considered by the court include, but are not limited to the following:
1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;
2. The age and physical and mental condition of each parent;
3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;
4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;
5. The role that each parent has played and will play in the future, in the upbringing and care of the child;
6. The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;
7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;
8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;
9. Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and
10. Such other factors as the court deems necessary and proper to the determination.
For more information on modifications of existing custody and visitation arrangements, and to obtain specific advice on the laws applicable to your situation, please contact us to schedule a consultation.