Many parents confronted with a custody order which they do not like are confronted with the reality of enduring the arrangement until they can show a material change in circumstances. The question I routinely get asked is, “what does that even mean?” In true lawyer fashion, the answer is always, “It depends.” The reality is the best assessment of your situation is to schedule a time to speak with an attorney who has the experience and skills necessary to fully assess your situation to help you develop a plan. In the meantime, consider the following to be a crash course in the initial hurdle in modifying an existing custody order.

First, it is important to understand custody orders can only be changed after a material change of circumstances justifying the modification being sought. This is to prevent the court from having to resolve the same dispute over and over. For example, if one parent is granted primary physical custody because the other parent moved away then in subsequent cases the previous move is not relevant to the new case. Therefore, the parent who was granted custody would not be able to use the fact the other parent moved in subsequent cases. This is because the law considers that issue resolved by the prior order. This is a rule commonly described as an inability to “go behind” the last order to use those arrows in your new case.

A material change of circumstance is any change in circumstances which alters the justification for the ordered parenting arrangement to such an extent the arrangements need to reevaluated to ensure the minor child’s best interests are being promoted. This definition could be interpreted so broadly any change could satisfy the rule and so narrowly that almost nothing will satisfy it. One factor which will almost always create a material change is a significant passage of time. It seems self-evident that arrangements for a two-year-old will not work for a ten-year-old. The reaching of school age, the extra-curricular activities and interests, developmental needs are all likely material changes which would have occurred during those eight years. There may also be material changes which occur on a far shorter timeframe. For example, if the other parent moves from Virginia Beach to Ahoskie, NC or even Chesapeake, then you will likely have a material change due to the additional transportation required. Additionally, if there has been a change in the other parent’s life which now limits their ability to fully exercise their time or there is a concern which was not present when the initial parenting arrangement was made, then you could likely have a material change allowing you to seek a modification of the parenting arrangements.   When evaluating a possible material change of circumstance, it is difficult to quantify a clean rule of thumb which can be provided to a client to measure exactly when a material change has occurred. Although, it is my goal as a skilled practitioner to ensure my clients understand the field upon which is battle will be resolved so they can understand and evaluate these developments as the occur so schedule a time to speak so you can get a leg up on the next round.

Feel free to call me at 757-818-8293 or click on our menu for a consultation.