A material change in circumstances warranting a modification has no specific factual definition in Virginia. It is based on the facts of the specific individual case and that determination is made by the trial court judge, who has broad discretion in these matters.
The analysis goes something like this:
1. Has there be some facts or circumstance that has changed since the entry of the last custody and visitation order and does that fact have any relevance to the children? Examples of what this might be are too broad to list, but they might be things like someone has moved or is moving, a parent or a child's schedule as changed (in terms of work or school), etc.
2. Does this change have a material (vs. trivial or negligible) impact on the children or the custody & visitation schedule? Answering this particular question is a bit more art than science and different judges (and attorneys) may answer it in very different ways. Certainly, one parent moving an hour or more away with the children is material. One parent withholding visitation from the other is material. A parent getting married is a change and a materially one, but quite possibly one that does not warrant modification (see below). If one parent decides to start allowing the children to watch cartoons after school and the other parent does not like this, that is not material.
3. If there is a change in the circumsntances since the last custody order, the change is not a trivial or insignificant one, and it is relevant to the children's custody and visitation, then does that change "warrant" a modification? In the example of a parent getting married, if the child has established some relationship with the new step-parent and that person is not a convicted sex-offender, junkie, or prostitute, then the answer is probably going to be no -- modification is not warranted. If, on the otherhand, the step-parent presents a danger to the child, then that would warrant modification.
If she is not co-operating in the court-ordered co-parent counseling and, more importantly is withholding visitation, refusing to provide visitation, or otherwise significantly and/or unreasonably interferring with your relationship with the child, then I would suggest that you may well have a material change in circumstances warranting modification. In such a case the change is that it was anticipated that there would be co-operation in co-parenting sessions and there would be visitation at the time the order was entered. If those things are not happening, then that is a circumstance that the court was not assumed by the court when the current order was entered.
I would recommend that you find a child custody attorney there in your local area and schedule an initial consultation to more specifically review your case.
This response does not create an attorney-client relationship and is intended for general information purposes only.
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