Can I Modify Custody in Virginia if My Ex-Spouse or I Get Remarried?

One of the biggest life changes that can occur post-divorce is when either you or your spouse decides to get married again. Whether this happens six months after the divorce or six years later, the understanding that you or your ex-spouse is moving on to another spouse can raise all kinds of issues. When kids are involved, however, these issues go beyond just emotional to more practical; day-to-day matters such as: 1) Do I want my child in a household with a new stepparent?, or 2) Now that I can provide a two-parent household, can I change the custody or visitation of the other parent? In Virginia, these questions go to the issue of modification of a child custody order, which can only be accomplished through the courts.

Remarriage Does Not By Itself Modify a Custody Order

Initial Virginia custody orders are either based on an agreement reached by the parents or a determination made by a judge, but, in either case, the judge will only make such an order if it serves the best interests of the child, based on numerous factors in Virginia law.

Virginia courts will not modify that initial custody order, unless it determines – based on the motion of the parent seeking a modification – that there has been a material change of circumstances since the original order was made. A remarriage by either you or the other parent does not necessarily present a material change of circumstances justifying modification, but there could be factors associated with the remarriage that do present such a change.

Grounds for Modification of a Custody Order in Virginia

Every case presents different specific facts, and a judge will look at a broad range of issues presented by both parents in petitioning for or responding to a modification of custody request, but here are some common grounds that might be raised for justifying the modification:

  • One parent is being denied visitation due to a remarriage
  • The remarriage has caused significant changes to the custody schedule
  • A new stepparent has drug/alcohol issues or presents a threat of domestic violence
  • A remarriage has led to a potential move farther away from the other parent
  • The remarriage affects the remarried parent’s ability to provide care for the child

Remember, that seeking a modification of a child custody order is really a two-step process.  The first step is proving that there is indeed a material change of circumstances necessitating a reevaluation of the custody arrangement. If that is successful, then the second step would be proving that a change in custody would be in the best interests of the child.

Your Virginia family law attorney can work with you to present your best arguments in your favor with regard to both of these steps to honor and protect your relationship with your child.

Termination of Parental Rights Via Adoption

When a stepparent enters into the picture, that individual may be providing parental services to the child (e.g. providing food, shelter, transportation, medical attention, etc.) but he or she is not legally the child’s parent, and the ex-spouse will remain the legal parent of the child with rights to custody and visitation as ordered by the court.

A stepparent in Virginia can however petition to adopt the child, however, which will give that parents all the rights and responsibilities of parentage, but doing so will require that the ex-spouse’s parental rights be terminated. This can be done voluntarily by the ex-spouse if agreed, but, if not, this will require the stepparent to petition a court to adopt the child, which, if granted, would involuntarily terminate the have the ex-spouse’s parental rights. Talk to a Virginia family law attorney to learn further about seeking or responding to a petition for stepparent adoption.

Get Legal Guidance on Your Child Custody Issues

At Kurylo Gold & Josey, PLC in Fredericksburg, we will guide through all of your questions regarding visitation, and help you work towards a favorable outcome in your family law matter. To schedule a consultation with one of our Virginia family law attorneys, contact Select Law Partners at 540.642.1766.

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Matt Kurylo

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