Deep inside Goddard Space Flight Center, not too far from the calm waters of Virginia Beach, spacecraft destined for Mars and beyond are assembled for liftoff. Many of the components have bright red tags on them reading, “Remove Before Launch.” For probes journeying outward to the far reaches of our solar system, those flag tags are one-way decisions. A planetary probe hurtling toward Pluto with a red flag still inside it is an irrevocable, bad decision. 3-2-1 is too late to wonder if the tag was pulled. Earthside, fortunately, very few decisions are irrevocable. Not even child custody after divorce.
Flight Test: Custody and The Best Interests of the Child
Your divorce is final. Your wife leaves the courthouse to return to the family home, where beautiful baby Betty and your beaming boy, Bobby, will remain so they have the fewest disruptions to their lives.
You return to your apartment, eager to see your kids in … a month? What were you thinking? You cannot wait a month to see bouncing Betty and brave Bobby! You signed the papers, you shook your lawyer’s hand, and left the courthouse. What can you do now?
In Virginia, child custody is always made under the principle of what is in the best interest of the child. To get an order changed so that you either get more time or exclusive time with your children, you cannot simply appeal to the judge’s soft side. The judge very likely has a soft side, but is also bound by plenty of Virginia law.
You need to have reasons (beyond your own second thoughts) to change custody orders. Changing child custody orders is an uphill battle, one your divorce lawyer may not be eager to engage in without ample cause.
In Agreement to Change a Child Custody Order?
Your wife may have become accustomed to two-parent parenting, so she may be unprepared to deal full-time, by herself, with bodacious Betty and boisterous Bobby. If you can get her to agree to change the child custody order, you have a much better chance of getting into court. She may opt for any of several variations:
- Joint custody — You both have the children as close to 50 percent of the time as possible
- Split custody — She may give you a larger percentage of time
- Sole custody — She cedes both handfuls to you, and agrees to visitation
If you and she can agree on changes to child custody arrangements, the court is far more amenable to entertaining a motion for a modification of child custody than if you force a motion against her.
Material Changes of Circumstance
Material change to your or her finances or living arrangements are grounds for a motion for modification. The Circuit Court judge that oversaw your divorce worked from 10 stipulations in § 20-124.3, “Best Interests of the Child,” and this is the same list consulted for any modification: .
- The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;
- The age and physical and mental condition of each parent;
- 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;
- 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;
- The role that each parent has played and will play in the future, in the upbringing and care of the child;
- 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;
- 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;
- 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;
- 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
- Such other factors as the court deems necessary and proper to the determination.
If your wife, who currently has custody, takes up drugs or drinking (and you can document it), she has undermined her own cause as a fit parent, #3 and #5.
If she refuses to let you see the children during your court-ordered visitation times (and you can document it), you have her on #4 and #6. The more items you can check off the 10-item list, the stronger your case. Discuss this strategy with your lawyer.
A call to 757-383-9184 connects you with The Firm For Men, where you can find a Virginia family law attorney ready to go to work for you to get changes to child custody. Contact us online or stop by our offices soon.