If you have a court order detailing custody and visitation of your minor child, and the other party repeatedly violates the order, you may have a few options. Each option is different and consists of its own elements. You may have heard the terms “Rule to Show Cause” or “modify custody” thrown around, but what do they mean for you and your custody order?
1. Rule to Show Cause
When one party violates an order entered by a Virginia court, the non-violating party can petition the court to enforce that order. This petition is called a Rule to Show Cause. Essentially a Rule to Show Cause asks the violating party to “show cause,” if they can, why he or she should not be held in contempt of court for violating the court order.
To petition for a Rule to Show Cause, the moving party must show that there is an existing court order and provide facts identifying with particularity which provisions of the order were violated. The more violations there are, the more willful those violations appear.
If the court finds that the violating party has, in fact, willfully violated the existing order, the court may hold the violating party in civil contempt. When a party is found to be in civil contempt, the court will impose a penalty intended to persuade the violating party to comply with the order. Civil contempt can include a fine, a period of jail time, jail time with a “purge bond” that must be paid prior to the violating party’s release, and/or paying the moving party’s attorney fees.
The violating party’s contempt is purged when they resume compliance with the order and satisfy any additional conditions placed upon him or her by the court.
2. Motion to Modify Custody/Visitation
The court has authority under Virginia Code § 20-108 to modify custody and visitation orders. The court will modify a custody or visitation order if (1) there has been a material change in circumstances, and (2) the modification requested is in the best interest of the child.
When we talk about a “material change” in circumstances, we are looking at a change that has occurred since the entry of the existing order. The material change can be neither a fact or circumstance that was previously litigated, nor could have been litigated and was not. There are dozens of potential material changes, including but not limited to: either party’s relocation or remarriage, a change in one party’s health or circumstances (e.g., losing one’s home or habitually abusing substances), or developments in a child’s medical or educational needs.
For example, if one parent had a history of alcohol abuse prior to the entry of the current custody and visitation order, this would not constitute a material change for the purpose of a modification because it is not a change or new development. In this situation, the Motion to Modify would fail (unless there’s a change in the severity of the alcohol abuse, such as a party “falling off the wagon”). On the other hand, if one party begins abusing alcohol after the parties’ current custody and visitation order was entered, the other party could petition the court for a modification based on this material change.
The next step is for the court to consider whether the requested modification serves the best interest of the child. Virginia Code § 20-124.3 defines the factors the court shall consider, including but not limited to the age and physical and mental condition of the child and each parent, the relationship between each parent and the child, and the needs of the child.
If the court finds that there has been a material change in circumstance since entry of the previous order, and the requested modification serves the best interest of the child, then the modification will likely be granted, resulting in a new custody and visitation order.
Conclusion
In summary, a Rule to Show Cause is a mechanism of enforcement when one party does not comply with an existing order, but it does not change the existing order. A modification of custody or visitation is a permanent change to an existing order as a result of a material change in circumstance, which leads to the parties’ new governing order.
If you feel that your custody and visitation order is no longer working for you, reach out to a family law attorney near you to discuss which option makes the most sense for your situation. Livesay & Myers, P.C. has a team of experienced family lawyers across offices in Fairfax, Arlington, Leesburg-Ashburn, Manassas and Fredericksburg-Stafford, representing clients throughout Northern Virginia. Contact us to schedule a consultation today.