How a Minor Child’s Preference Can Affect Modification of a Custody/Visitation Arrangement in Virginia

Introduction

     When modifying a custody/visitation arrangement in Virginia, the court must determine whether or not there has been a material change in circumstances since entry of the previous order, as well as determine whether or not modifying the current arrangement is in the best interest of the child. Many factors are considered to determine whether a material change in circumstances has occurred.

Key Factors for a Material Change in Circumstances

     There are ten (10) key factors considered when determining whether or not a material change in circumstances has occurred:

1) Child’s circumstances; 

2) Non-custodial parent’s circumstances; 

3) Best interests of the child; 

4) Willingness to support contact; 

5) Willingness to maintain relationship; 

6) Needs of the child; 

7) Age and physical/mental condition of the child; 

8) Parent’s financial stability; 

9) Child’s medical care; and 

10) Child’s school performance.

     As you can see, all these key factors play a part in a broader picture of how the minor child and the minor child’s parents are handling the current custody/visitation arrangement. When considering a material change in circumstances, a change in just one or two of these factors may not be enough for the court to determine that a material change in circumstances has occurred and order a modification to the current custody/visitation order.

Child’s Preference

     For example, in Livingston v. Stark, Case No. CL-2019-850 (Fairfax County, Dec. 18, 2023), the parties had an agreed order which provided that they would alternate weekends from after school Friday until Sunday at 6:00pm, with the Father having the children from 6:00pm Sunday until after school Wednesday and Mother having the children from after school Wednesday until after school Friday.

     Mother filed a motion to extend the weekend through Monday morning so that the parties had an equal number of overnights with the children. In her motion, the Mother indicated that the only material change in circumstances was that the children wanted to equalize the time spent with their parents and didn’t want to transfer households on Sunday evenings. The Mother’s motion was denied, because a child’s preference alone does not constitute a material change in circumstances. If other factors had come into play, such as the schedule causing mental distress to the children, it may have constituted a material change in circumstances.

Conclusion

    Our team of experienced family law attorneys at Smith Strong, PLC can assist you with any situation you are going through related to custody/visitation. Please call us at (804) 325-1245 to get started with a comprehensive, 1.5-hour consultation to discuss your vustody/visitation matter.

Special thanks to Owen Togna for editorial assistance in drafting this article.