What is a material change in circumstances to affect custody or visitation in Virginia?
Updated: Nov 16, 2022
This is an excellent question and not an easy one to answer. I would say that it is an excellent question because this is something that’s extremely important in custody and visitation cases in Virginia. The material change in circumstances can mean all of the difference between winning your case and losing before you even get started. By this post, I hope to define or at least illuminate what a material change of circumstances is regarding custody and visitation in Virginia and then explain the importance of it.
Anytime that there is a custody or visitation case when there has already been a prior order, the moving party must demonstrate at the beginning of the case a material change of circumstances to justify a change in custody or visitation. If this does not happen, the court can dismiss the case. The court can also award the other side attorney’s fees. Now you probably see why I stress the importance of a material change in circumstances.
I am going to try to define the term by using as few of the actual words of the time as possible. When does finding what is a material change in circumstances you have to look at what occurred since the last hearing. Anytime that someone asks the court to change an existing Order, the Court must determine that a material change in circumstances has occurred. Again, if there is no material change in circumstances then the Virginia court will dismiss the case and has the potential to award attorney’s fees to the other side.
Let me first give a little background on parenting of children and the law in Virginia. The United States Supreme Court has stated in Troxel v. Glanville, 530 U.S. 57 (2000) that there is a liberty interest at stake for parents when the care, custody and control of their children is at issue before the Courts. This is an extremely important ruling because it means that the law in Virginia recognizes the importance of the relationship between parents and children in custody or visitation cases.
So what is a “material change of circumstances” for custody and/or visitation to a Virginia court? I will try to explain without using lawyer-terms. A “material change of circumstances” is a change that has occurred since the last Order that is significant enough to require a change to the existing custody or visitation orders or both. The change cannot be small. An example of a small change would be a move fifteen to twenty minutes away. That can be material if someone moves to a different city or state even though the parents still remain close. So “material” is a flexible word that, as we know lawyers tend to say, depends upon the situation.
There are some examples of a material change in circumstances that have been recognized by the courts in Virginia regarding custody and visitation. These are called precedent meaning that if the moving person demonstrates one of these that person usually overcomes this initial burden. Examples include a parent moving, a parent remarrying, a parent having another child, a parent being convicted of a serious crime including a felony or a crime involving violence, a parent being accused or suspected of child abuse, an investigation by Child Protective Services, the medical needs of the child not being met, the needs of the child having changed over time, one parent’s residence or living situation is such that it is not healthy for the child to reside or visit there, the child’s educational needs not being met (this includes excessive absences or tardies), a parent withholding visitation or access to the child, or a parent violating the existing Court Order. Now this list is not exhaustive and merely some common examples. To find out if you have met this burden, I strongly suggest that you contact a Virginia attorney who is competent in the area of custody and visitation law.
So when does this material change in circumstances have to occur for a Court to modify its existing Order in Virginia? Well there is no definitive answer to that question. My advice to clients is that there should be a material change in circumstances at the time of the filing of the Petition or Motion to Amend Custody or Visitation. If this occurs then there is no question at the time of the first return or hearing date that there is a change of circumstances. This helps protect getting the case dismissed before you even get a chance to have the Court hear it.
There are times that the change of circumstances has not yet occurred but the Court will accept in light of the situation. The easiest and most common example is a parent moving. Virginia law requires that if there is a current Order in place whether it is for custody, visitation or support, that the moving party informs the Court and the other party of the change of address thirty (30) days in advance of the move. At this point while the change in circumstances is potential and, perhaps, probable, it is enough for the Court to hear the case. If the person moving changes his/her mind, then the change may go away and the Court may not hear the case. For the most part, potential changes in circumstances, despite how probable it may be, is not enough for the Court to modify an existing Order.
So once you get past the material change in circumstances aspect of your custody/visitation case the question is what is next. Well then there is a trial based upon the facts of the case. I will not go into details about this in this post but if you have questions about how visitation is determined in Virginia feel free to read this Blog post. If you have questions about how custody is determined in Virginia, feel free to read this Blog post. If you want to know how to start a child custody case in Virginia, well I have this Blog post for you.
For more information, feel free to visit our exclusive family law site for information on divorce, separation, child custody, child visitation, spousal support and child support at BrianThomasson.com.
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Brian is an award winning attorney having been selected multiple times by his peers and/or the public as a Super Lawyer, one of Virginia's Legal Elite, one of Coastal Virginia's Top Trial Lawyers, and other organizations for his skill and knowledge as an attorney.
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