Changes in custody and visitation arrangements in Virginia

Posted on Feb 28, 2014 by Katie Carter

On Wednesday, we talked about how critically important it is to draft custody and visitation arrangements, so that both you and your child’s father know what to expect and learn to co-parent together. While it’s incredibly important to start out with a custody and visitation plan in mind, it’s also important to keep in mind that things may change as your children grow and mature.

Sometimes, we can plan for these changes. When a client has very young children, it is reasonable to expect that visitation will grow and expand as the children can handle more time away from their mother. While overnights may not be appropriate for a six month old breastfeeding baby, at some point both the child’s father and the child will likely want to spend more extended periods of time together.
You can draft an agreement that allows custody and visitation to expand as the child gets older. You and your child’s father can sit down and talk about when you feel it will be appropriate for the child to start having overnight visits, weekend visits, or even vacations with the other parent. If you can agree, that’s great. If you can’t agree, or if you just can’t be sure at what point this kind of visitation would be appropriate, you’re not alone.

A lot of times, parents have to change their custody and visitation arrangements. For some parents, that means that they make a verbal agreement regarding custody and visitation, and they stick to it. For other parents, that means that they’ll have to actually go back to court to re-litigate the issue.

Modifying custody and visitation agreements

Custody, visitation, and child support are always modifiable based on a material change in circumstances. Why? Well, the court wants to make sure that whatever is happening is in the best interests of the child. It’s probably not in the best interests of the child to permanently deny overnight visitation to dad, just because the child was an infant when the original custody and visitation agreement was drafted. Until the child turns 18 (and is no longer a child, according to Virginia state law), the court maintains an interest in what is in the child’s best interest.

What’s a material change in circumstances?

A material change in circumstances could be a lot of things. Getting a job, losing a job, raises, promotions, or demotions, moving, and so on could all be considered material changes. In most cases, the court will hear your petition (or your child’s father’s petition) as long as it’s been six months or so since your last determination.

It’s pretty easy to argue that there has been a material change in circumstances, mostly because the court wants to err on the side of caution and be sure that whatever arrangement exists is in the best interests of child. A material change could also be anything that affects the health, safety or general well-being of the child.

What will the court do with the petition to change custody and visitation? Should I have an attorney?

The court will review the facts of your case and make a determination. If your case is in juvenile court, anything that happens there would be appealable to the circuit court, so you don’t have to hire an attorney if you don’t want to, but it would certainly help.

How can I avoid going back to court on custody and visitation?

If your children are young, you need to expect that things will change over time. It’s easiest and cheapest if you consider these changes, either when you’re drafting your agreement during your divorce, or as you go along, and encourage an open and honest dialogue with your child’s father. While it is pretty critical to have a custody and visitation arrangement spelled out at the beginning of your divorce, and it is incredibly helpful to have a couple of modifications built in (so that your child’s father knows you anticipate him getting more time with the child later on), oftentimes the stress of the divorce dissipates over time and couples are able to agree to custody and visitation without additional time in court.

Ultimately, you know your relationship with your child’s father better than anyone, and you’re probably in the best position to judge whether things will stay contentious as time goes on. If you suspect that it will, consider attempting to negotiate custody and visitation now that will adjust and expand as time goes on. Talk to your child’s father and get his feedback. Anticipate the things he might ask for, and already have those things worked into your agreement. Impress him with your thoughtfulness now, and you’ll have less reason to fight later.
If you expect that things will quiet down later, it may be okay to move forward without an additional plan for expanding visitation. You should definitely have something in place for the first several years following your divorce, but the future may be something that you’re able to negotiate on your own as it happens.

No matter what, though, keep in mind that things will change as your child grows and matures. That’s a good thing! Keep this in mind now, and be sure that you can roll with the changes, be a good mom through it all, and support the relationship that the child has with the other parent.