Although one generally begins a custody matter in the juvenile court by filing a petition, to modify a previous custody order, one will need to file a motion to modify the previous custody order in the juvenile courts. Additionally, one needs to be aware that the initial ordering court will retain jurisdiction to modify its order if the child or one parent continues to reside in Virginia. If neither a parent nor the child continues to reside in Virginia, jurisdiction is determined as if the matter was going to be originally filed in Virginia. Thus, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) will be controlling.
Under UCCJEA, jurisdiction is generally determined if Virginia is the home state of the child or Virginia was the home state of the child within six months before the commencement of the proceeding and the child is absent from Virginia but a parent or guardian acting as a parent continues to reside in Virginia. Furthermore, if a court from a different state fails to meet the requirements to exercise initial jurisdiction or a different state court has decided that Virginia is the proper forum and declined jurisdiction, Virginia may exercise jurisdiction over the matter. Finally, if no other state would qualify under the UCCJEA to exercise jurisdiction or all other states who could satisfy the requirements under the UCCJEA to exercise jurisdiction have determined that Virginia is the better venue, Virginia may exercise jurisdiction over the child.
To modify a court order for custody, the Supreme Court of Virginia opined in Keel v. Keel. 225 Va. 606, 303 S.E.2d 917 (1983) that two simple factors be considered. First, the courts consider whether a material change in circumstances has occurred. Second, courts consider whether a modification of the custody situation would be in the child’s best interest.
Unfortunately, there is no clear formula to determine if a modification is in a child’s best interest. Some factors that the Virginia Court of Appeals and the Virginia Supreme Court have noted are the preference of the child, remarriage by a parent, new employment, and death of a parent.
Jon Montagna received a Bachelor of Arts in Literature from American University in Washington D.C. and graduated Cum Laude from the University of Miami School of Law in 1999. Jon practices law in the Hampton Roads Virginia area.