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Know the Laws: Virginia

UPDATED October 2, 2012

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Below is state-specific information about custody in Virginia.

After an order is in place

back to topIf a custody order is already in place, how can I get it changed?

You can file to have your current custody order modified (changed) if there has been a material (substantial) change in circumstances since your most recent order was issued.*  When making a decision about whether or not to change the order, the judge will look at whether there has, in fact, been a change in circumstances and whether or not changing the order will be in the best interests of the child.**

A “material change in circumstances” may include (but is not limited to):

  • One parent intentionally keeping the other parent from visiting with the child without good reason;*
  • Changes in the child’s life, such as special educational needs or health needs;
  • Negative changes in the life of the parent who has custody, which will impact the welfare of the child; or
  • Positive changes in the life of the parent without custody, such as remarriage, creation of a stable home environment, and increased ability to provide emotional and financial support for the child.**
Generally, you would file a petition for modification at the juvenile and domestic relations district court that issued your original custody order.  You would have to arrange for the abuser to be served with the petition so that he has the chance to appear in court.  The hearing may be similar to previous custody hearings, but you will have to prove that a material change in circumstances has occurred and that it is in the child's best interests to change the order.

Also, if one of the parties in a custody case is a member of the army, navy, marine corps, coast guard, national guard, or any other reserve, and the reason for the modification request is that party's deployment, then it can be requested that the petition be reviewed more quickly by the judge.*

* Va. Code Ann. § 20-108
** See Keel v. Keel, 303 S.E.2d 917 (Va. 1983)

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back to topCan I change the state where the case is being heard?

If you move to another state, you may be able to change the state where the custody case is being heard (sometimes known as a "change of venue").  However, if there has been a lot of court dates for your case already or if the other parent objects to the case being moved, this might make it harder to transfer the case.  Generally, the judge hearing the case will need to be involved in this decision.  This is a complicated issue, so it may be best to contact a lawyer if this applies to you.

To find organizations that provide legal help in Virginia, please see our VA Finding a Lawyer page.

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back to topIf there is a custody order in place, can I take my kids out of state?

It depends. Generally, whether you can take your child out of the state for a short period of time depends on what your custody order says.  The custody order may allow you to take your child out of the state, prohibit you from taking your child out of the state, or it may not address the issue at all.  If you are unsure as to whether or not you would be violating your custody order by leaving for a short period of time, we suggest that you ask a lawyer to review the order and advise you.  Go to VA Finding a Lawyer for free and paid lawyers.

If you want to take your children out of state for a long period of time (i.e., move out of state), look to your custody order to see if it prohibits taking the children out of state.  Custody orders in VA are supposed to include a condition that if either parent wants to move, s/he give the other parent and the court 30 days advance written notice of the intended move.  The notice has to include the intended change of address, unless the judge says you do not have to provide your address.*  Note: You may want to get advice from an attorney as to whether or not you have to file a copy of the 30-day notice with the court, whether or not you should take any other steps to keep a record of sending the notice (for example, whether or not you should send it return-receipt requested), etc.  Upon receiving the notice, the other parent may object to your intended move, especially if it would interfere with his/her time with the children.  In that case, you may have to ask the court to change the order to allow you to move and to modify the visitation schedule so that the move will not violate the other parent's visitation order. 

The court will decide whether or not to allow the child to relocate based on the best interests of the child.  For more information on how to change your custody order, please see If a custody order is already in place, can I get it changed?  Warning: If your custody order says you cannot take your child out of the state or if by moving out of state, you violate the visitation rights of the other parent, you could possibly be charged with contempt of court, parental kidnapping, or both.** 

Note: If you are in danger and need to leave the state to protect yourself or your child, you may be able to file for temporary emergency custody in the state that you flee to.  Getting a temporary order will mean that you have legal custody of your child for the time being, but the abuser could be notified that you applied for custody in that state, which might make it easier for him to locate you.  For more information about how to get this, see Can I get temporary emergency custody? Please talk to a lawyer before leaving the state if at all possible.  Go to VA Finding a Lawyer for free and paid lawyers.

* Va. Code Ann. § 20-124.5
** Va. Code Ann. §§ 18.2-49.1; 18.2-47(D)

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back to topCan a parent who does not have custody have access to the child's records?

Generally, either parent (regardless of whether or not s/he has custody) can have access to the minor child’s academic or health records, unless a court decides there is good cause to deny a parent access to those records.*  A history of family abuse may qualify as good cause.**

In addition, the child’s doctor or clinical psychologist can deny a parent’s request to see the child’s health records if they feel there is a good chance the child or another person will be substantially harmed by allowing that parent to see the records.  The parent who is denied access can have this decision reviewed (and possibly overturned) by another doctor or clinical psychologist with similar training and experience at his own expense.***

* Va. Code Ann. § 20-124.6(A)
** See, for example, L.C.S. v. A.C.S., 453 S.E.2d 580 (Va. App. 1995)
*** Va. Code Ann. §§ 20-124.6(B); 32.1-127.1:03

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