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Can you modify a custody or visitation order?

Posted by Alisa Chunephisal | Jan 26, 2021 | 0 Comments

Once the court enters an order related to the custody and visitation of your child, can it ever be changed?  The short answer is maybe.  

When can a custody order be changed?

The courts recognize that a child's needs change rapidly from infancy through the teenage years.  Therefore, even after a court has entered a custody or visitation order, the court can modify the custodial schedule if the following two conditions have been met: 1) there has been a material change of circumstances since the entry of the last custody/visitation order; and 2) the material change in circumstances warrants a modification when considering the best interests of the child.  

First, a parent must plead a material change of circumstances since the entry of the last custody or visitation order.  Examples of a material change of circumstance includes, but is not limited to, a change in school, change in emotional or education needs, remarriage, a new sibling, substance abuse, or a parent moving. 

Second, the court will then consider if the material change warrants a modification due to the child's best interests.   

What factors does the court consider when determining a child's best interests?

In determining the child's best interests, the court shall consider the factors set forth in Virginia Code Section 20-124.3:

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 (i) family abuse as that term is defined in § 16.1-228; (ii) sexual abuse; (iii) child abuse; or (iv) an act of violence, force, or threat as defined in § 19.2-152.7:1 that occurred no earlier than 10 years prior to the date a petition is filed. If the court finds such a history or act, the court may disregard the factors in subdivision 6; and

10. Such other factors as the court deems necessary and proper to the determination.

Determining whether or not a material change warrants a change to your custody order is fact-specific and unique in each situation.  If you would like to change your custody or visitation order, our firm can help you to analyze the facts of your case to determine whether it is worth petitioning the court for a new order. 

Alisa practices family law as a divorce lawyer from the Fairfax and Manassas offices in the Circuit and Juvenile and Domestic Relations District Courts for Fairfax County, Prince William County and Loudoun County.  

About the Author

Alisa Chunephisal

Alisa has been a practicing attorney since 2007. She started her legal career as a judicial law clerk to the Honorable Marcus D. Williams (Ret.) of the Fairfax County Circuit Court, 19th Judicial Circuit of Virginia. During her clerkship, she had the opportunity to frequently observe trials and m...

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