Change to Custody and Visitation Order

Most cases settle.  That holds true even in divorce cases.  In divorce cases, with the increased use of mediation and other forms of alternative dispute resolution, settlement is even more likely.

A Change to a Court Determined Custody and Visitation Schedule Requires a Material Change in Circumstances

For custody and visitation cases that do not settle and end up going to trial, the court will decide the custody and visitation schedule.  Parties who are unhappy with the schedule provided by the court can request a change.  However, for the change request to be granted, that party must show two things:

  • That there has been a material change in circumstances since the most recent award


  • That the proposed change would be in the best interests of the child.

The requirement that one party show a material change has occurred in order to change the custody and visitation order makes sense for cases that have been resolved with a final order in place.  In those cases, the parties have presented their positions at trial and the court has made a decision.  It would be unfair to allow a party to seek change simply because they are unhappy.  To allow such a change would create a cycle of never ending litigation, resulting in skyrocketing costs and stress on all parties involved.

A Change to a Mediated Custody and Visitation Agreement Also Requires a Material Change

But what about cases that have been resolved through agreement – where an order has yet to be entered?  For example, if the couple agrees to mediation and works out an acceptable custody and visitation schedule, if one party is later unhappy, does the material change in circumstance rule apply here as well?  Or can a parent simply seek change because they are unhappy or simply because that party changes his or her mind – after all no court order has been entered.

The 2009 Virginia Court of Appeals Case, Duva v. Duva dealt with this very issue.  The Court found that even in a case where custody and visitation arrangements have been resolved by agreement, before such an agreement can be modified it is necessary to satisfy the material change test – i.e. to show (1) a material change in circumstance has occurred since the date of the most recent award and (2) that the change would be in the best interests of the child.

The Duva case is significant because under Duva, even if a court order memorializing the terms of an agreement has not been presented or entered, the higher material change requirement still applies.  As a result, for those people going through mediation or other alternative dispute resolution form, you do not have to worry, the agreement will not be disregarded just because the other party changes his or her mind.