Changing, Enforcing, or Appealing a Custody Order

After you have a custody or visitation order, both parents are legally required to follow it. But life changes, and sometimes an order that made sense before no longer fits.

This article explains what to do if the other parent is ignoring the order, if you need the order changed, or if you want to challenge the judge's decision.

What to do if the other parent is not following the order

If the other parent is not following the custody or visitation order, you can ask the court to step in and enforce the order. You do this by filing a Motion for Show Cause Summons, which is a request that asks the judge to make the other parent come to court and explain what they have been doing.

What if the judge agrees the order was violated? 

If the judge agrees the other parent is violating the order, the consequences can be serious, including criminal charges. The judge may also change the custody arrangement, or add new conditions.

What if the judge does not think the order was violated? 

If the judge finds that the other parent did not violate the order, you can appeal the decision. You can also ask the judge to put their explanation in a written order. That can help clarify what the order actually requires going forward.

If the problems continue after the hearing, give the other parent some time to correct things. Try to work it out directly if you can do so safely. If issues keep happening, you can file another Motion for Show Cause.

Keep in mind that courts notice when someone files repeatedly. Be prepared to show that you tried to resolve things since the last motion and that the ongoing issues are affecting your child.

If the other parent is not paying child support, contact the court or the Department of Child Support Enforcement to deal with that separately. Read more about enforcing child support.

Remember: Disobeying a custody or visitation order on purpose can be a misdemeanor in Virginia. If you and your child are outside Virginia, violating a custody/visitation order could be a felony. It can also lead the judge to change the custody arrangement against you.

When can a custody order be changed? 

You can only change a custody order if something important has changed since the judge made it. The law calls this a material change in circumstances. One way to think about it: if these new facts had existed back then, would the judge have decided differently?

Some examples of material changes:

• A practical change that makes the order really difficult (like moving out of state)
• An issue with the other parent that is causing significant problems
• The parent has fixed something about their circumstances and the child would be better off if they could have more time together

You also have to show that the change you are asking for is best for the child.

Can I move out of state with my child? 

If you share custody or have a visitation order, you usually cannot decide on your own to move out of state with your child. This is because it may not be in your child’s best interests, and may interfere with visitation. Always remember, you are required to tell the court and the other parent  anytime your address changes.

To get court permission to move, file a Motion to Amend Order. Call the court that made the last order and ask them how to file. Once you file, the court will schedule a hearing.

You will need to show two things:

1. Something important has changed since the last order was made.
2. The move is best for the child.

Judges generally assume that keeping the child's relationship with both parents is in the child's best interests. Be prepared to explain how you will make the effort to support their relationship if you move. If the judge finds the move too disruptive for the child and the child’s relationship with the other parent, the judge may change who has custody and visitation.

How long-distance visitation works

If one parent lives far away or out of state, the judge will still work to protect the child's relationship with both parents.

Depending on the distance, the arrangement might include:

• One or two weekends per month
• Extended time during summers and holidays
• Regular video calls or other virtual contact

Both parents may be required to share transportation. Travel costs can be a factor, but they are not always a dealbreaker. A judge may still order travel even if it is expensive or inconvenient, if they believe it is important for the child.

Appealing the judge's decision

You can appeal any final JDR Court order. You must file the appeal at the JDR Court clerk's office within 10 days of the order. Ask the clerk for instructions if you want to appeal. The original order stays in effect while the appeal is pending.

Do I need to go back to court to change our arrangement? 

It depends on your order. Some custody orders say the arrangement can be changed if both parents agree. If yours says that, you may not need to go back to court.

But even if you and the other parent agree on a change, it is usually a good idea to get a new court order anyway. If things go smoothly now but a conflict comes up later, you do not want to be accused of violating the original order.

If you do go back to court and both parents already agree on the change, say so. Tell the judge: both parties agree, and we just want the order to reflect our current arrangement. Judges appreciate when parents have worked things out on their own, and it can make the process faster and simpler.

If your order does not allow changes by agreement, you will need to file a Motion to Amend. See the steps above.

Working things out without going to court

If you and the other parent can reach an agreement on your own, a good co-parenting plan should be in writing and signed by both parties. It should cover:

• Living arrangements and a visitation schedule, including in-person time, phone calls, and video
• How both parents will stay involved in education and how school decisions are made
• Financial responsibilities
• The child's medical needs, emergency contacts, and how records are shared
• Arrangements for holidays and special events
• A plan for how you will handle disagreements when they come up

Where can I get free or low-cost help? 

• Find your local legal aid office: virginialawhelp.org/get-legal-help or call 866-534-5243.
• Ask a lawyer a question online for free: virginia.freelegalanswers.org.
• Get a low-cost lawyer consultation for $35: vsb.org/Site/legal-help.

Things to remember

• You cannot deny visitation because the other parent is not paying child support. Handle them separately.
• To change an order, you need to show that something important has changed and that the change is best for the child.
• If you want to move out of state, tell the court and the other parent. You usually need court permission, especially if the order states this. If you do not seek court permission, you should have a signed agreement with the other parent.
• Appeals must be filed within 10 days of the order. Do not wait.
• The original order stays in effect during an appeal.