When should I file Virginia petitions to modify custody and visitation?

Posted on Oct 20, 2021 by Katie Carter

I know we’re heading into the week of Thanksgiving, and the rest of the holidays are just around the corner, so the summer break from school is the last thing on anyone’s mind.

The thing is, though, that when it comes to school aged kids, custody and visitation decisions have a whole lot to do with the school’s academic calendar.

Judges and Guardians ad litem are often reluctant to make a big move in the middle of a school year, so you have a sort of narrow window – between January and August or so – to make big things happen, before the next school year starts and you’re stuck following the same parenting plan for another academic year.

There’s so many deadlines with kids, right? It can be SO stressful to remember to do all the things – register them for schools or daycares, to get them all their ‘well child’ checks on time, to make sure they’re getting swimming lessons or signed up for t-ball. When you’ve got a kid (or kids!) who are subject to a custody and visitation agreement or order, you’ll have to add at least one more consideration to that list.

Custody and visitation decisions are always modifiable based on a material change in circumstances, because what’s in a child’s best interest isn’t fixed – it’s complex and it’s constantly changing. What made sense last year may not make sense this year, right?

And maybe even more to the point, when what you are doing was NEVER working (even though you told everyone involved that it wouldn’t work from the beginning but nobody listened to you) – you’ll also need an opportunity to point that out and to request that a change be made to the current order or custody agreement.

If you and your child’s father are on the same page, great! Maybe it’s possible to negotiate a different way forward that will take the child’s needs into account a little bit better than under the current arrangement.

If you and your child’s father are not on the same page, there’s nothing you can do but litigate. There’s no other way to move your own agenda forward if he won’t agree other than petitioning the court and, ultimately, asking the judge to decide.

Like I said, too, you have to consider the academic calendar, and keep in mind that – barring fairly exceptional circumstances – judges don’t really like to make big, disruptive changes in the middle of the school year. You may be fine to petition for a change in custody and visitation at any point, if what you’re asking wouldn’t change anything as it relates to school enrollment. But if what you’re asking WOULD necessitate a change – like, if you’re asking to be allowed to relocate, or if you want primary physical custody, and you live in a different school district from where the children are currently enrolled – you may be best off asking towards the end of the year (with the understanding that they finish out the current school year where they are) or during the summer months, but before the new academic year has begun.

The problem is, the courts are SUPER backed up. Like, it’s really hard to get a quick trial date. And if you’re filing new petitions for custody and visitation, you’ll have an initial appearance before your trial date – so that’s two court hearings.

Now, each court is a little bit different, and each has it’s own docket and related delays. It’s even worse with COVID-19; we’re still recovering from the period of judicial emergency when courts were closed. (And, even still – things get scheduled and then cancelled, and courts close due to COVID-19 exposures, all the time.)

If you’re hoping to get in before the next school year starts, NOW is the time to talk to an attorney and get the ball rolling. It may seem ridiculously early, but it’s not. You’ll have to remember that time in the legal world moves at a positively glacial pace. And you definitely want to have a chance to be in front of the judge BEFORE the next school year starts!

For more information, feel free to request a copy of our custody book for Virginia moms on our website, or by giving us a call at 757-425-5200.