When you first established your custody arrangement, it seemed like the right fit for your family. But life rarely stays the same and what worked then might not work now. If you face persistent challenges in your co-parenting relationship, you may wonder whether it is time to seek a modification.
What qualifies as a material change?
A material change means a meaningful change in a family’s circumstances that affects a child’s well-being. Courts in Virginia focus on new developments that truly affect how the custody arrangement works for the child.
That said, not every issue qualifies. A child’s wish to spend more time with one parent is not always sufficient, though it may constitute a material change depending on the child’s age and maturity. The court looks for more than everyday disagreements or inconvenience.
If you are the requesting parent, you carry the burden of proof. This means you must present evidence demonstrating both that a material change has occurred and that modifying custody would serve your child’s best interests. Without that proof, the court will not alter the existing order.
What issues justify a custody modification?
The following situations could constitute a material change:
- Parental relocation: When a parent plans to move a significant distance, it may disrupt the custody schedule and affect the child’s relationship with both parents. Virginia law requires a parent to give the court and the other parent at least 30 days’ written notice of any address change, no matter the distance, unless the court grants an exception for safety reasons.
- Safety concerns: Substance abuse, domestic violence, criminal activity or neglect in either home may place a child at risk. Courts also review whether a new partner or household member creates safety concerns for the child.
- Interference with visitation: State law explicitly states that intentionally denying visitation without a good reason may qualify for custody modification.
In addition to these issues, courts also recognize other changes that may meet the standard. These include major changes to a parent’s work schedule, the birth of additional children, new educational or medical needs for the child and ongoing failure to cooperate with co-parenting responsibilities.
What is the process of seeking a custody change?
The process typically begins by filing a Motion to Amend in the either the Circuit Court or the Juvenile and Domestic Relations District Court that issued the original order. If the child has moved to a new state or county, jurisdiction laws, such as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), may require transferring the case to a new court.
If both parents agree on the changes, they can submit a Consent Order for the judge’s signature. This avoids a contested trial and allows families to resolve matters quickly.
When you and the other parent disagree, in most situations the current court order remains in effect until a final evidentiary hearing can be scheduled.
If mediation fails, your case moves to trial, where the judge reviews the evidence and issues a final order establishing the new custody arrangement. During the trial, the court may also appoint a guardian ad litem—a lawyer who investigates and represents your child’s best interests, independent of what either parent wants. Most custody cases in Virginia however do not have a guardian ad litem.
Before you consider filing a petition, reaching out to an attorney can be beneficial. They can assess whether your circumstances realistically meet the material change standard before you invest time and resources in litigation. Attorneys also understand procedural requirements that, if overlooked, could delay or derail your petition.
