In a divorce, a lot of things are set in stone – regardless of whether the case is finalized by a signed separation agreement negotiated by the parties, or whether the case goes all the way to trial and the judge issues a final order. Things in equitable distribution, like the division of the retirement accounts, allocation of personal property, sale or refi of the marital residence, and so on, are done and finalized when the case concludes.
You get, as they say, one bite at the apple. Though under some circumstances you can appeal, that’s definitely the exception and not the rule and, anyway, at some point you’ll find that a final order is entered and there’s nothing left to keep fighting for. It’s over, that’s it. It’s resolved.
Custody, visitation, and child support, though, are not like that. Though you may have a ‘final’ agreement or a ‘final’ order in your case, the key when it comes to custody is determining what’s in the best interests of the child (or children). The ‘best interests of the child’ isn’t something that is fixed; it’s something that is dynamic, changing and shifting as they grow and develop. The law allows room for this possibility; the fact that, what once worked, isn’t necessarily the thing that will always work.
Kids change. So, too, can custody, visitation, and child support. It makes sense, but it’s also one of those parts of the process than can make it feel particularly abusive. While normal, good parents can make use of the system to effectuate a necessary, healthy change in their parenting plan, other parents can use it in an attempt to harass, manipulate, control, or intimidate their former partner. Though the individual judges certainly do their best to try to minimize this behavior, they’re often the people in the room who know the least about the case, and your ex (if he’s really crafty) will know how to appear to his strongest advantage when it suits him.
Still, he’ll be able to petition the court for a change, if there has been a material change in circumstances. Likewise, of course, so will you.
But what is a material change in circumstances?
It’s one of those legal phrases that’s about as clear as mud. Honestly, even to experienced attorneys, it can be difficult to determine whether a ‘material’ change has occurred, since the language itself is a bit subjective. What’s material? It DOES sort of require a certain amount of interpretation. So, how will you know if a material change has occurred in your case?
There’s a couple rules of thumb I’d use.
First of all, a sufficient amount of time should probably have passed between the new petitions and the entry of the last order. Most courts want to see a minimum of 6 months to a year before filing again. If it’s too soon, they may reject the petition out of hand – probably in an attempt to curb that kind of abusive litigation I was describing earlier on.
Secondly, I’d also try to keep in mind that whether or not a change is material is down to whether – or to what extent – it impacts the children. It’s not about whether you have experienced a material change in circumstances; it’s whether the circumstances have altered materially with respect to the children. You’ll want to be able to detail how the changes have impacted them – not you. Just “I got a new job,” or “I’ve remarried,” isn’t enough in and of itself; you’ll need to be able to explain how and why that change affects the children and makes your current custodial arrangement inappropriate to support their best interests.
What constitutes a material change will also be fairly broadly construed; in general, the court’s not looking at this as a ‘gotcha’ moment, where they’ll dramatically send you from the courtroom (even though, frankly, I’ve felt that way before in these types of cases).
The language you have in your agreement isn’t going to restrict your ex’s ability to file later, either. I get a lot of questions about that. Recently, a client asked me if I could put in her separation agreement that, in the event of her death, her mom or sister would have custody of the children. Unfortunately, it doesn’t work like that. That wouldn’t be binding, even if he did sign it, and he could certainly petition the court for custody of his children – and he’d win. It doesn’t matter if you specifically include that he won’t have overnights, or something to that effect, either – over time, if it becomes appropriate based on a material change, the court can issue a different order.
Keep in mind, too, that when you go to court on your modification, you’re not going to be able to dig back in the archives. What I mean by that is that, for modification purposes, what matters is only what has happened since the entry of the last order. You can’t pull out all the old stuff he did from prior to the last order when your case is up for a modification. Unless he has made the same mistakes, you’re going to have to stick to what has happened since that order was entered.
Custody, visitation, and child support are going to be modifiable based on a material change in circumstances – period. What constitutes a material change will be sort of subjective, depending on your judge, but if it has been awhile since your custody order was entered and if the major changes in your life (or your ex’s life) have impacted your children, it may be a good time to file to modify custody, visitation, and child support.
For more information, or to request a copy of our free book on custody for Virginia moms, give us a call at 757-425-5200.