Custody litigation is when you go to a court to resolve custody disputes. There are different types of custody litigation. Custody litigation can result in a temporary or final order. (Note: a custody order cannot ever be final in the strictest sense. Custody is always modifiable if there is a material change in circumstance and it is the child’s best interest to modify custody).
In any custody litigation, the Court must apply the criteria and factors set forth in Virginia Code Section 20-124.3, which is entitled, “The best interests of the child.”
You can go to court for an initial custody determination, that is when there is no court order or final agreement regarding custody or visitation. This can occur when you are going through a divorce with your spouse. It can also take place when you are not married to the other parent and the two of you you cannot reach a custody agreement.
You can also have custody litigation when you have a custody order or agreement and are seeking a change in custody or visitation and the other parent does not agree to the modification. To modify custody, you need to show that there has been a material change in circumstances and that a modification of custody would be in the child’s best interests. There are many material changes in circumstances. Examples of material change in circumstances are the child is older, a parent is moving residences, the child, a parent has remarried, the child’s situation has deteriorated (doing poorly in school, behavioral issues, psychological problems), the other parent has become unfit (has become an alcoholic or drug abuser), or the child is being poorly treated.
You can have custody litigation over specific issues where you and the other parent cannot agree. Examples include relocation of the children; what school the children should attend; major child related decisions; should the child be in therapy.
There is emergency custody litigation. These are cases that require immediate action by the court. Examples include: the parent abducts the child; the child needs an immediate operation; the child is being abused or neglected; the child is in danger.