On this page
A custody order is not the end of a custody case. Children grow, parents relocate, schedules stop working, and sometimes a parent simply stops following the order. I represent parents in Fairfax, Loudoun, and elsewhere in Northern Virginia who need an existing custody or visitation order changed, who need one enforced, and who need to defend against a modification the other parent has filed.
I am Jason A. Weis, an attorney with Curran Moher Weis in Fairfax. Modification and enforcement cases are decided on a record built after the last order was entered, so the work begins with documenting what has changed and what has not.
Changing an Existing Custody Order
A court that has entered a custody or visitation order may later revise it as the circumstances of the parents and the benefit of the children require. Va. Code § 20-108. The parent seeking the change must prove two things: a material change in circumstances since the last order, and that the requested change would serve the child’s best interests. Bostick v. Bostick-Bennett, 23 Va. App. 527 (1996). The best-interests question is decided under the factors in Va. Code § 20-124.3.
The first prong is a real threshold, not a formality. A change that was already anticipated when the last order was entered may not qualify. A more concrete version of a relocation plan that already existed at the time of the prior decree, for example, is not by itself a material change. Bostick, 23 Va. App. 527. A parent defending against a modification should test the threshold before the case reaches best interests.
What Can Count as a Material Change
Whether a change is material depends on the facts and on its effect on the child. Situations that frequently raise the question include:
- a parent’s planned relocation, or a move that has already occurred;
- a significant change in a parent’s work schedule, household, or health;
- changes in the child’s own needs as the child matures, including school, medical, or developmental needs;
- conduct by a parent that affects the child’s safety or well-being; and
- a pattern of interference with the other parent’s time.
On the last point, the statute is explicit: a parent’s intentional withholding of the child from the other parent without just cause may constitute a material change of circumstances. Va. Code § 20-108.
A child’s preference is one of the best-interests factors, but it is weighed with the others and is not controlling. One Fairfax Circuit Court judge has held that a child’s preference, without more, is not a material change where the facts behind it have not changed since the last order. Livingston v. Stark, No. CL-2019-850 (Fairfax Cir. Ct. Dec. 18, 2023). See A Child’s Preference in Virginia Custody and Relocation Cases.
Relocation
Every Virginia custody and visitation order requires a party who intends to relocate to give the court and the other party thirty days’ advance written notice, unless the court orders otherwise for good cause. Va. Code § 20-124.5. A contested move is litigated within the ordinary modification framework: a material change, and a showing that the change serves the child’s best interests. Sullivan v. Knick, 38 Va. App. 773 (2002). See Relocating With Children After Divorce in Virginia.
Enforcing a Custody or Visitation Order
When a parent does not comply with a custody or visitation order, the court has authority to punish any willful failure to comply as contempt and to enter additional orders necessary to enforce its order. Va. Code § 20-124.2(E). In the juvenile and domestic relations district court, a parent who violates an order may be brought before the court on an order to show cause, or for contempt. Va. Code § 16.1-292.
An enforcement case is decided on proof of the order’s terms and of what actually happened. A dated record of missed or late exchanges, the written communications surrounding them, and any school or third-party records that confirm the pattern are usually the core of the case. Where the interference is serious or repeated, the same record may also support a request to modify custody under § 20-108.
Where the Case Belongs
Under the Uniform Child Custody Jurisdiction and Enforcement Act, a Virginia court that made a custody determination generally keeps exclusive, continuing jurisdiction to modify it as long as the child, a parent, or a person acting as a parent continues to live in Virginia. Va. Code § 20-146.13. When a parent and child have moved, or an order was entered in another state, which court may act is a threshold question to resolve before anything is filed.
Frequently Asked Questions
What do I have to prove to change custody in Virginia?
A material change in circumstances since the last order, and that the change you are asking for is in the child’s best interests. Bostick v. Bostick-Bennett, 23 Va. App. 527 (1996).
Can a child decide which parent to live with?
No. A child’s preference is one factor the court weighs under Va. Code § 20-124.3, but it does not control the outcome, and a preference alone may not be enough to reopen an existing order. See also Children Testifying in Virginia Divorce Proceedings.
What can I do if the other parent keeps withholding our child?
You can ask the court to enforce the order through contempt. Va. Code § 20-124.2(E). Intentional withholding without just cause may also be a material change of circumstances supporting a custody modification. Va. Code § 20-108.
Is the other parent’s move a material change?
It can be, depending on its effect on the child and the existing schedule. A more concrete version of a move that was already contemplated when the last order was entered may not be enough by itself.
Do I have to give notice before I move with my child?
Yes. Virginia custody and visitation orders require thirty days’ advance written notice to the court and the other parent of an intended relocation or change of address, unless the court orders otherwise for good cause. Va. Code § 20-124.5.