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What does Virginia consider to be a material change in circumstance in a custody case?

Hampton, VA |

My ex & I current have joint legal/ physical custody w/him having residency for school purposes only.We switch every other week.Last yr due to the divorce, I was unemployed,in foreclosure, etc.I'm now full time employee, college graduate (B.A.),own stable residence. My 6 yr old has told the counselor about her dad burning her with cigarette in several places and telling her to lie about it (reported to DSS)The teacher has notice a change in her social behavior.The school n my district is superior bc its a magnet school.I'm more of an active parent, he isnt. He is a FT employee &student.He goes to school 3 nights/wk, 1 of which is his mid-week visitation with his child.Hes "on-call" at work a lot. Our child is often at daycare or with his parents.Whats my chances of gaining primary custody?

Attorney Answers 2

Posted

There is no hard and fast, birght-line rule as to what constitutes a material change in circumstances warranting modification.

If all or most of the circumstances that you have described in your question are new (i.e., did not already exist and/or where not anticipated/foreseeable at the time that current custody order was entered), then it sounds like you have a very reasonable argument to make that circumstances have changed in some material ways since the custody order was entered. Whether that will result in you gaining primary custody or not depends upon whether you can show/persuade the court that this change "warrants" modification and that giving you primary custody is in the best interests of the child.

The requirement to sufficiently allege a material change of circumstance is primarily to prevent a parent who is not happy with the outcome of their custody case from returning to court over and over again in an attempt to relitigate the same old issues or facts and/or to make an end-run around the time requirements for properly appealing a custody decision. The changes that you mention in your question are substantive, not trivial. Once you present the facts at trial to support that these alleged changes have occurred, your primary focus will need to be on showing that the factors listed in Section 20-124.3 of the Va. Code support a finding that it is in the child's best interest for you to be primary custodian.

You will need to prove your case by providing admissible evidence (including documents and witnesses) to the court to substantiate your position. This may include the school counselor, CPS reports (which, in and of themselves, are not going to just be accepted into evidence), possibly his employer (if he disputes your assertions about his work schedule), etc. Accordingly, it would be extremely helpful for you to have an attorney represent you in your case (the attorney should know the rules of evidence and how to conduct aggressive pre-trial discovery, as well as securing the witnesses, getting around non-discloure issues, requesting an IPE if necessary, requesting a GAL be appointed, etc.).

This response does not create an attorney-client relationship and is intended for general information purposes only.

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Asker

Posted

thank you this is very helpful. What is a IPE? Who would be considered as admissible witness? I have her teachers, counselors, CPS, her extracurricular activities instructors.. Is there anything else that I need to consider?

Jennifer E Mandell

Jennifer E Mandell

Posted

An IPE is an Independent Psychological Examination. If a parent is physically and emotionally/mentally abusing the people in their lives (especially children), then there is a very good possibility that there is some mental health issue involved. Since you cannot get at counseling records directly (they are privileged from disclosure), having a court ordered IPE (which is not subject to privilege) may enable you to get into evidence any underlying mental illness, personality disorder, anger-management issues, or substance abuse problems that may be going on with the other parent that could affect the health and welfare of the children. As far as wintesses are concerned, it is impossible to know who you might want to call as witness without being knee-deep into the facts of your case. However, a good rule of thumb to keep in mind is the hearsay rule. The hearsay rule essentially excludes from evidence any "out of court statement being offered in court to prove the truth of the matter asserted (in the out of court statement)". It applies to any statement, whether oral or written -- which is why documents can be difficult to get into evidence unless you know the hearsay exceptions that would allow the document into evicence. As far as witnesses are concerned, it is a helpful rule to remember -- if there is something you want the court to hear, then you need to bring the person who said it into court to testify. So, for example, the counselor can't testify as to what the child told them (it's an out of court statement being offered to prove the truth of the statement -- daddy burned me with a cigarette). There may also be some privilege involved. Same with CPS - a peson from CPS can testify as to things they personally witnessed (a burn, an unsuitable living environment, etc.), but not as to things that other people reported to them. When it comes to children, who the court is not going to want to see a parent trying to haul into court to testify, usually the appointment of a Guardian ad litum for the child is a useful way to get some of this hard to admit information before the court via the GAL's report (it's kind of a back-door way of getting otherwise inadmissible information in). Also, you can request home studies be done as part of the custody case. The home study findings are admissible. There are a number of exceptions to the hearsay rule (but it takes a number of years of law school, followed by years of actual litigation practice to really understand them and to know when and how to argue those excpetions). So, if you can get trial counsel for your case, I would strongly recommend it.

Posted

Ms. Mandell does a nice job of describing what you need to consider. I will only add that before you file -and I hope you will get an attorney to assist you - start a cookbook. For each point you raise write out every thing you has that will support that issue (eg. cigarette burns - witnesses, cps report/ worker; graduation - diploma; job - letter and possibly employer/ supervisor). Have filled in to better assist your attorney.

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