If you and your former spouse have children together, then your final divorce decree will also incorporate a child custody and visitation order or a settlement agreement that you reached with your former spouse detailing who gets custody and visitation of the children and when. Because these custody and visitation schedules are court ordered, they must be followed or you risk being held in contempt of court. However, these orders can be modified as your family situation changes and your children grow older, so long as the court find the modification to be in the best interests of your children.
The easiest way to modify a custody and visitation arrangement is to enter into an agreement with your former spouse that modifies the current schedule. This is often referred to as a consent modification. While parties can consent to modification without the court’s approval if you don’t have an existing custody order. However it is a good idea to ask the court to approve the modification in the event that you or your ex-spouse violate the agreement and you need to litigate the issue in court. Courts routinely approve consent modifications so long as the change is in the best interests of the children.
If you or your former spouse cannot agree on how to modify custody, or one of you objects to modification entirely, then you will have to file a motion with the court asking for a modification. In order to have the court modify your current custody arrangement, you will need to show (1) a material change in circumstances, and (2) that the material change warrants modification as in the children’s best interests.
To prove a material change in circumstances, the change must have occurred since the entry of the court’s last custody and visitation order. This means that you cannot base your change in circumstances on facts, evidence or testimony that existed prior to the current custody order.
So what constitutes a material change in circumstances? While there is no set definition of what constitutes a change in circumstances sufficient to modify a custody or visitation order, there are examples of positive and negative changes that courts have found sufficient. Some positive changes include your remarriage to a new spouse, or obtaining a new job that pays a higher salary or allows for more flexible work hours. Some negative changes include your child or children developing behavioral or mental health problems, you or your ex-spouse struggling with drug or substance abuse issues, or a parent’s criminal conviction. In addition, you or your former spouse’s repeated violation of the current custody and visitation order may also be a change in circumstances warranting a modification.
If the court determines that a material change in circumstances has occurred, the judge will then consider whether modification of the custody and visitation arrangement warranted, i.e., in your children’s best interests. The judge must apply the factors listed in Section 20-124.3 of the Virginia Code in determining the best interests of your children. These factors include your children’s ages, your children’s health and needs, the relationship between you and your ex-spouse with the children, and, if your children are deemed old enough and competent to testify, your children’s preferences as to custody and visitation.
If the court determines that modification is in fact in your children’s best interests, the judge will enter an order modifying custody and visitation.
If you are considering a modification of child custody or visitation or are faced with a motion from your ex-spouse seeking to modify the current custody and visitation schedule, you should hire a qualified and compassionate family law attorney who understands your case and who will fight for your rights. The team of family law attorneys at the DiPietro Family Law Group has years of experience representing spouses in custody cases and all other family law matters. Contact one of the DiPietro family law attorneys today to schedule a consultation with a caring professional at (703) 370 – 5555.