The Fairfax County Circuit Court considered a case asking the Court to modify an existing custody agreement based solely on the children’s preference to split time more equally between parents. This was a matter of first impression for the Court, and Judge Bernhard declined to recognize a child’s preference as the basis for a material change to modify the custody agreement.
In the case of William D. Livingston, Jr. v. Pooja S. Stark, the parents previously agreed to a custody agreement that allowed both parents to split time during the weekdays and alternate weekends with their two minor children. The alternating weekend schedule ended up giving more time on Sundays to the father. The mother filed a motion to modify the existing custodial schedule to equalize the time between each parent. At trial, the eldest of the two children testified that both children preferred to equalize the weekend time with each parent for fairness reasons and found it inconvenient to transfer houses on Sunday evenings. The court denied the motion to modify, determining that there was no case law or statutory authority to support the position, and therefore declined to allow child preference alone as the basis for a material change. The defendant’s mother filed a motion to reconsider.
In Virginia, courts use a two-part test to determine whether a change of custody should be made: (1) whether there has been a material change in circumstances since the most recent custody award; and (2) whether a change in custody would be in the best interests of the child. Courts will find a material change when circumstances have changed since the most recent custody award so that the arrangement is impaired or ineffective. Some examples of material changes Virginia courts have recognized include child abuse, parties being unable to cooperate, withholding of visitation, where parties have become engaged or married to someone else, or when a parent moves a significant distance away.
Virginia case law and statutes explain that a material change is something more than a minor inconvenience or preference. The Court recognized that a child’s preferences, combined with sufficient evidence that a child is in absolute distress or danger, may be sufficient to create a material change to modify the custody agreement. However, here, there was no distress or abuse present to support a change. The Court also identified the concerns of finding a material change based on child preference alone. For example, parents could be inclined to pressure their child to say they want more time with one parent over the other. Additionally, children often change their minds about their situation, causing the risk of more custody disputes in courts.
Ultimately, on review, the Court affirmed its decision finding that the children’s preference for a change in the custodial agreement, without more, was not a material change in circumstances. Nothing has changed since the most recent agreement, and the children were aware of the perceived unfairness in weekend time at the time of the agreement. Since there was no material change, the Court did not need to address whether the proposed custodial change was in the children’s best interests.
If you or your former spouse is considering modifying your custodial agreement, the experienced family law lawyers at General Counsel, P.C. can help you navigate this process and protect your rights. Email us at intake@gcpc.com, call us at 703-556-0411, or use this Contact Us form to see how we can help you.