When Virginia judges give custody orders, they are based on the circumstances of the parents and children at the time of the order. But, over the years, a child’s needs change. They may need more or less childcare, experience new medical needs, or attend different schools. Over time, parents also experience changes in circumstances. They may need to move for various reasons, or their relationships with their children may change. When life changes happen, an existing custody order may no longer represent what is in the best interest of the child.
One or both parents may want to modify a custody order to better reflect the current situation they and their child are experiencing. When parents agree to modify a custody order, the process can be a simple matter of entering a consent order. However, without the parents’ agreement, the process becomes more complicated. A court must find both that (1) there has been a material change in circumstances since the most recent custody order, and (2) a custody order modification would be in the best interests of the child.
Material changes in circumstances and the best interests of the child
First, in order to modify a custody order, a parent must demonstrate that there has been a material change in circumstances since the date of the last custody order. In Keel v. Keel, 225 Va. 606 (1983), the Virginia Supreme Court held that “[t]here is no simple, mechanical, ‘cut and dried’ way to determine whether there has been a change in circumstances.” In determining whether a material change in circumstances exists, a court may consider a variety of factors, such as:
- Changes in the child’s maturity
- Changes in the child’s educational or medical needs
- Negative changes in the life of the parents, such as being laid off, mental health issues arising, or a decreased ability or willingness to care for the child
- Positive changes in the life of the parents, such as a promotion, raise, remarriage, or the purchase of a home
Second, the parent seeking modification must also show that the changed order is in the best interests of the child. The court will make a comparative analysis of a number of factors based on the totality of the circumstances. The court will then determine the best home for the child, meaning the home where the child will have the best opportunity to fulfill their potential. For more information on the best interests analysis, read our blog post here.
The process of modifying a custody order can be difficult, particularly given the totality tests involved in each of the two steps described in this blog post. Experienced attorneys understand how to apply the circumstances to the factors and can help guide you through the process of modifying a custody order.