In Virginia, custody orders can be modified if there has been 1) a material change of circumstances since the entry of the last order and 2) it is in the best interest of the children to modify custody. The change of circumstances may be either positive or negative. For example, a parent may have received a better job or more flexible work schedule. The change could also be negative, such as a parent receiving a criminal conviction or if a child’s developmental needs have changed. If a parent has not behaved and followed the court’s orders, that would also be grounds for a modification of custody. Virginia Code § 20-108 states: “The intentional withholding of visitation of a child from the other parent without just cause may constitute a material change of circumstances justifying a change of custody in the discretion of the court.”
Once a material change of circumstances has been proved, the court will re-examine the best interests of the child. Virginia Code § 20-124.3 lists the ten factors the judge will examine in determining the best interests of the children. The Judge will make a factual determination based upon the facts in your case.
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.