Virginia Custody and Visitation: The Long Haul

Posted on Dec 9, 2022 by Katie Carter


At some point in the past, a judge reached a decision about what custody and visitation arrangement was in the best interests of your child(ren) and, since that time, you and your ex have had to live with it. Either that, or the two of you reached an agreement about custody and visitation, and, since then, you’ve been more or less following it.

But…things aren’t perfect. Maybe you hated the order (or the agreement) from the beginning. Maybe the Guardian ad litem was problematic, or you felt backed into a corner. Maybe you were so paralyzed with fear and grief that you weren’t thinking clearly. Maybe he never followed the agreement or court order, and instead plays fast and loose with the rules in order to drive you insane and continue to exert some kind of ridiculous control over your life. Maybe his drug, alcohol, or mental health issues aren’t as resolved as you thought.

You’re not stuck with your current custody arrangement; it’s modifiable!

Whatever the case may be, custody, visitation, and child support are modifiable based on a material change in circumstances because the best interests of the child is not a fixed, immovable thing. It’s flexible; it changes with the children as they grow and mature. What may have made sense for a 5 month old isn’t necessarily what makes sense for a 5 year old or a 15 year old, especially once you start to look at all the changes in a family that can take place during that time. Remarriages, stepchildren, new half brothers and sisters, adoption, relocation, reunification – a million things can happen.

In general, a material change in circumstances is going to be broadly construed, especially if it’s been 6 months to a year since your previous custody determination. (Judges generally don’t like to hear petitions for modification before that time; it’s just too soon.) Anything that might impact the children could be a material change in circumstances, but the focus is always going to be on the kids, and their best interests, rather than the changes for you and your best interests.

Whether you’re in court for the first time or the five hundredth time, the focus is the same: the best interests of the children.

That’s something that I always feel the need to point out: it’s not a question or mom or dad’s best interests, it’s the best interests of the child(ren) and how the custody arrangement can accommodate and support that. In the case of, say, a relocation, it’s not going to be sufficient to say that a move makes sense because it provides economic opportunities to one of the parents, and therefore is in the children’s best interests (because more money = better). It’s really going to be important to focus on what kind of custodial arrangement suits the children’s best interests, using the specific factors to help you determine where to focus your efforts. You should have evidence, witnesses, and exhibits related to those factors, and be prepared to argue for why your proposed custody and visitation arrangement suits the children’s best interests.

How far back can I go? I have a lot of issues with my child’s father.

Technically, the only thing that’s relevant is anything that happened since the entry of the last order. Whatever happened prior to that is no longer admissible, since, presumably, it was considered at the time the last order was entered (or the last agreement reached). You don’t get to go back over and over the same old facts again, hoping for a different outcome. It would be a tremendous waste of judicial resources. No, you only get to use your evidence once, and then you have to use only whatever has happened since the last order for the modification.

What about a Guardian ad litem?

If you had a Guardian ad litem before, chances are good that the same Guardian ad litem will be reappointed to handle your case. It’s possible that your Guardian ad litem retired, moved, or is temporarily not taking cases (like, out on maternity leave, maybe?), so it’s possible that you could have someone else appointed, but not likely.

Wherever possible, the court likes the same Guardian ad litem to be appointed so that it’s someone who has familiarity with the case. That’s a big part of why it’s so important to have a good relationship with your GAL and, if you don’t, to work on it. It’s not going to be worth your while, in most cases, to expend any effort trying to have the GAL removed or someone else appointed. It’ll be a much better use of time to try to repair that relationship.

Where do I file my petitions to modify custody, visitation, and/or child support?

Your divorce decree (if you were divorced) will remand the case back to the juvenile court. If you never married your child’s father, everything will have taken place in the juvenile court – and that’s where you’ll start your petitions to modify, too.

Like any other petitions you file in juvenile court, you can always appeal de novo to the circuit court if you get a result you don’t like – but, again, if you modify, you’ll be back in juvenile court. You’ll always start in juvenile court.

Once the case is decided, can I modify again?

Yes. You’re not limited to one modification. You can petition the court to modify, again and again, if there’s a material change in circumstances, up until the child(ren) turn 18. Some families find themselves in court again and again. Others go a few times, and then work it out between themselves. Still others never go at all. It really all depends.

You can always modify! As before, a period of time (usually, 6-12 months) should have elapsed since the prior determination, and there needs to be a suitable material change in circumstances, but you can modify.

It’s not a perfect happily ever after, but you’re not stuck with a result that you hate. You can always petition the court to modify, which it will do, using the best interests of the child factors as its guide.

For more information about custody cases in Virginia, request a copy of our custody book or give us a call at 757-425-5200 to schedule a consultation.