Since custody and support orders most often relate to minor children, they tend to govern the parties at least until their children reach the age of majority. This means that the parties can potentially be bound by an order that was entered 18 years ago. While that is a long time, for some families, a custody or support order entered that long ago can continue to meet their needs. But what happens when circumstances change? Are the parties still bound by that court order or can they modify it?
The most important thing to note is that until a court order has been entered to modify a previous order, the original order will remain in full force and effect. However, Virginia law allows either party to a support or custody order to seek a modification if he/she can meet the requisite burden and prove that 1) there is a material change in circumstances since the entry of the order and 2) that the change warrants modification of the order. While many changes can occur from the time of the order, only a material change in the parties' circumstances will be grounds for modification. For example, a party that is required to pay child support but has subsequently been terminated from his/her employment can probably seek a modification of the support order. However, the law only allows this if the person seeking modification did not voluntarily cause that change by, for example, violating a rule that led to his/her termination. Similarly, a recipient of support can seek modification of support if the payor's income increases sufficiently to warrant an increase in support.
The party seeking modification would have to prove the existence of a material change and that the circumstances of the parties justify a change in the court's order. Sometimes, although a party is able to prove a material change in circumstances, the court can deny the motion to modify support because of the needs of the other party and/or the children affected by the order. Therefore, it is important that a person seeking a reduction in support, for example, also proves that the parties' circumstances justify a modification.
Custody orders can also be modified if there is a material change in circumstances. A common example is where one of the parties relocates, and the parties' current custody/visitation schedule is no longer feasible. Another example is where one of the parties engages in activity that puts his/her fitness as a parent into question. Just as in support modification cases, the party moving for a modification will bear the burden of proving that there is a material change and that it justifies the modification of the custody order.
Finally, it is important to note that even if the parties agree to a modification by accepting a lower amount of support, for example, the court order will remain in effect and can be enforced by either party until a subsequent order is entered to modify it. However, if the court grants the modification, it will be retroactive to the date of filing of the modification petition.
Whether you are seeking a modification or you have been served with a motion to modify, it is often difficult to navigate the legal proceedings alone. Contact our office to schedule a consultation and get advice regarding your modification.