One of the most asked questions regarding custody and visitation is whether a parent can change the terms of an existing custody order. The child has gotten older and now wants to live with the other parent. Perhaps the custodial parent has allowed a person of the opposite sex to move in against the wishes of the non-custodial parent. Or maybe the parents just can’t get along. Is there anything that can be done to change an order? In order to change an existing custody or visitation order, a party must prove two things: 1) a material change in circumstance since the entry of the last order and 2) that a change in the order is in the best interests of the child. Courts are to interpret broadly the meaning of a material change in circumstance. The change does not have to be negative. For instance, if the non-custodial parent has improved her living situation or has established stable employment that she did not have previously, those could constitute a material change. Of course, negative actions on the part of the custodial parent often serve as a material change. But the courts also can consider changes in the child’s life independent of the parents as a material change. The question of whether a material change in circumstance has occurred is a factual issue for the judge to determine. If a parent is able to prove a material change, then the court must determine whether a change is in the child’s best interests. In evaluating best interests, the courts must consider each and every factor as set forth in Virginia Code Section 20-124.3. Again, the determination of best interests is a factual issue based on the circumstances of each individual case. Child custody and visitation cases are complex and involve numerous factors and circumstances that must be evaluated. A person involved in a custody or visitation case should strongly consider hiring an aggressive, experienced local attorney that can give an honest evaluation of your case and fight to protect your rights. Contact our Western Tidewater offices for a free case evaluation.
