Bucci & Dix

Material Change in Circumstance Standard

The threshold standard for courts to consider a change in a custody or visitation order is the material change in circumstance standard.  The Virginia Court of Appeals recently highlighted this standard in Duva v. Duva.  In this matter, the court examined a situation where Father was granted only supervised visitation of the parties' minor children.  Father, disfavoring this ruling, sought a modification to allow him unsupervised visitation.  Father's justification for this change apparently hung on Mother's failure to comply with an oral agreement to take the parties' minor children to frequent counseling sessions, though this obligation was never set forth in a court order.  The court denied Father's request, noting that nothing material had changed since the court last examined the issue of custody.  In Virginia, the standard for a custody/visitation change is (1) whether there has been a change in circumstances since the most recent [visitation] award; and (2) whether a change in [visitation] would be in the best interests of the child. In Duva, Father's claim did not meet the standard for a change in circumstances.