Petitions to Modify Virginia Child Custody

Posted on Oct 10, 2018 by Katie Carter

As you probably are already aware, once you have a child with someone, they never really go away.
In a divorce or a breakup where there are no children, the parties are free to go their own separate ways and never see each other again. It’s not only desirable but encouraged. There’s no reason for them to have any future contact. A divorce is seamless; it completely, totally, and permanently separates the two former partners.

With kids, it just doesn’t work that way. Though you can break up or divorce, there’s no real getting away from each other. You’ll have to see each other. Speak to each other. Check in with each other. Not just every now and again, but fairly often, particularly if your children are underage.

While your children are under the age of 18, if you have a custody and visitation agreement or court order in effect, you’ll have to follow it. That means pick ups and drop offs, coordinating schedules for summer vacations and holidays, communicating regarding illnesses and school report cards, seeing each other at volleyball and soccer games. It can be pretty comprehensive. Additionally, there’s also the possibility that your case won’t be entirely resolved, even after you’ve entered into an agreement or a judge has made a determination regarding custody and visitation in your case. Why? Well, in case you don’t already know, custody and visitation are going to be modifiable based on a material change in circumstances.

Why is custody always modifiable?!

It’s based on the best interests of the child principles. In Virginia, that’s how we make determinations regarding custody and visitation; it’s all about what’s in the child’s best interests.

What’s in a child’s best interests isn’t necessarily fixed and unchanging. It could be, but it isn’t necessarily. Judges don’t assume that because one particular custody and visitation schedule was in the child’s best interests initially that it’ll be the best custody and visitation schedule for the child forevermore. The judge will allow parties to at least periodically petition the court for a modification of custody, provided that there has been a material change.

Typically, too, courts require that there has been at least 6 months to a year since the last determination of custody.

What’s a material change in circumstances?

Well, in my experience, what constitutes a material change in circumstances will be construed pretty broadly. It really includes almost any change that has a material impact on the child’s life. Anything that happens that has disrupted or impacted the child could be seen as a material change. Likewise, anything that happens that would cause child support to be increased or decreased is also a material change. (Why? Because child support is in a child’s best interests.)

So, what? He can just keep bringing me to court, over and over again?

Yes. I know it’s not fair and, in many cases, is an extremely abusive act by the child’s father, but he is legally allowed to file custody and visitation petitions, and there’s nothing I (or any other attorney) can do to prevent him from being allowed to do so.

Is it abusive? Often it is. Is it unnecessary? Many times, yes. Is it designed to financially cripple the other party? I have seen that be the case.

Still, if petitions are filed, you have to respond. That doesn’t mean you have to have an attorney; you can appear without one in Virginia courts, if you prefer or can’t afford to hire one to represent you. And, in many cases, in juvenile court, people DO appear on their own, without the assistance of an attorney.

If there hasn’t been a material change, that’s certainly a good point to argue. If there has, you’ll have to make an argument, based on the best interests of the child factors, for why the custody and visitation arrangement you prefer is most appropriate. (Hint: Don’t just say he should have no access to the children, or should have supervised visitation only, without some real evidence that he’s harmful to the children, no matter how many times he makes you go back to court.)

There’s those “best interests of the child” factors again. What does “best interests of the child” mean?
Best interests of the child is a standard established by statute. It’s what judges and guardians ad litem and attorneys use to guide them in custody cases. If you’re not already familiar with them, now’s a good time to start. I’ll copy them here for you:

1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;
2. The age and physical and mental condition of each parent;
3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;
4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;
5. The role that each parent has played and will play in the future, in the upbringing and care of the child;
6. The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;
7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;
8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;
9. Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and
10. Such other factors as the court deems necessary and proper to the determination.

In custody cases, there’s really nothing more important than the best interests of the child factors. You’ll want to show how your proposed schedule does suit their best interests, as defined by the ten factors.

What if I want to represent myself?

Lots of people choose to represent themselves, especially at the juvenile cour t level. The juvenile court has a reputation for being the most user friendly of the courts, and, besides that, if you get a bad result, you can always appeal your case to the circuit court for a de novo (meaning, brand new!) hearing on the issues. So, if you lose, you can even try again.

That doesn’t mean you should just wing it, though. After all, this is court, and there are serious consequences here. Besides, your kids are at stake. You need to know as much as possible about Virginia law and how it operates in custody cases before you step foot into the courtroom.

If you’re considering representing yourself in a Virginia custody case, consider attending Custody Bootcamp for Moms, our custody seminar designed to help moms learn the ins and outs of custody cases at the juvenile court level.  It’s a great resource, and it’s full of tons of information.

Also consider requesting a free copy of our custody book. It’ll help teach you a lot about the law, and is a good way to get started.

There’s no doubt that in many cases these petitions to modify custody are done excessively and abusively. It’s no fun to feel like you’re going to be brought back into court in 6 months to a year to re-determine what’s working fine to begin with, especially if your financial position is such that you can’t afford to hire an attorney to represent you to help. Repeated petitions to modify are annoying, but no attorney can prevent him from being allowed to do this. Luckily, though, in most jurisdictions, the same judges and same GALs are continually involved on the same cases, so it’s pretty likely that your faces will become familiar. If your child’s father is abusing the court system to get to you, it’ll likely show – and the people who matter will quickly become aware of it.

For more information, to learn about Custody Bootcamp, or to schedule an appointment with one of our custody attorneys, give our office a call at 757-425-5200.