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
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
- Each parent’s propensity to actively support the child’s relationship with the
- 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
- 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
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.
To schedule a consultation regarding your custody modification case, call our
experienced Virginia divorce & family law attorney at 571-766-6860 or email
us at firstname.lastname@example.org .
About Khanna Law, PLLC:
Khanna Law is a full-service law firm located in Reston Virginia. We specialize in
all aspects of divorce, custody, & family law, family & business based immigration
law, as well as trust and estate law. We proudly serve clients throughout the
Northern Virginia area including Fairfax, Loudoun, Arlington, and Prince William
At Khanna Law, your case is always our top priority.
We pride ourselves in not only zealously representing our clients inside and
outside the courtroom, but also in providing them with a clear understanding of the
legal rights and process they are undertaking. No matter the complexity of your
case, you can trust us to provide you with the highest quality legal representation,
innovative legal solutions, and a client focused approach to your case.