Introduction


The Fairfax Circuit Court clarified that a child’s stated preference - without additional evidence - cannot reopen a custody order because it does not constitute a material change in circumstances.


    In Livingston Jr. v. Stark (VLW 023-8-093, Fairfax Cir. Ct. Jan. 7, 2024), the Fairfax Circuit Court addressed a question of first impression in Virginia: can a child’s stated preference to alter custody, without more, justify a change in custodial arrangements? The Court answered firmly in the negative, ruling that while a child’s preference is a relevant factor under Virginia’s “best interests of the child” standard, it cannot, standing alone, constitute a material change in circumstances sufficient to reopen a custody order.


Background


The children’s desire for an equal-time schedule did not amount to a new or destabilizing development because their feelings of inconvenience existed at the time of the original agreement.


     The parents, William Livingston Jr. and Pooja Stark, shared custody of their two minor children pursuant to an existing agreement providing alternating weekend visitation. Stark later petitioned to modify custody, citing the children’s expressed preference to spend equal time with both parents.


     At trial, the eldest child testified that both siblings found the current arrangement “unfair” and inconvenient. However, Judge David Bernhard held that this testimony did not rise to the level of a material change in circumstances. The Court emphasized that the same sense of “unfairness” existed at the time of the original custody agreement and that no factual changes had since occurred to destabilize the arrangement.


Legal Analysis

The Court emphasized that a child’s preference is already accounted for within the best-interest factors, and allowing it to also serve as the material-change threshold would be legally redundant and open the door to undue influence.


     Virginia law requires a two-step inquiry before modifying custody:

1. The moving party must first establish a material change in circumstances since the last custody order; and
2. Only after that showing may the court consider whether the modification serves the best interests of the child.

     Citing Bistel v. Bistel (Va. Ct. App. 2017), the Court reiterated that material changes typically involve developments affecting the child’s welfare or the parents’ circumstances that significantly undermine the existing custodial arrangement. Mere inconvenience or dissatisfaction does not suffice.


      Judge Bernhard found that a child’s custodial preference, while meaningful, is already accounted for in Virginia Code § 20-124.3, which lists the statutory factors governing a best interests determination. To treat a child’s wishes as both a material change and a best-interest factor would be “redundant and incongruous,” the Court held. The Court further reasoned that allowing preference alone to justify modification could expose children to undue influence or manipulation by parents seeking more custodial time. “Children’s minds - and preferences - can shift based on momentary emotions or interactions,” Judge Bernhard wrote, cautioning that courts must safeguard stability and shield minors from such pressures.


     While the Court did acknowledge that a child’s preference combined with evidence of distress or harm might satisfy the threshold, it found no such showing in this case. Both parents were “near optimal stewards,” and no evidence suggested psychological distress or harm to the children.


Implications


 The decision underscores Virginia’s strong preference for custodial stability and confirms that meaningful post-order developments - not a child’s evolving feelings - must drive modification requests.


     The decision in Livingston Jr. v. Stark reinforces Virginia’s consistent preference for stability in custody arrangements and clarifies the distinction between the threshold and substantive stages of modification proceedings. Parents seeking to modify custody must demonstrate meaningful, post-order changes (such as relocation, health concerns, or new behavioral issues) not simply the evolving preferences of their children.


     Practically, this ruling discourages litigation driven by shifting family dynamics or parental dissatisfaction. It underscores that courts prioritize long-term stability over convenience or fairness as perceived by the child. However, the opinion leaves open the possibility that a child’s preference, coupled with substantial evidence of distress or other material developments, could meet the required standard.


Smith Strong Can Help


Smith Strong helps parents evaluate whether a true material change exists and guides them through the evidentiary demands of custody modification proceedings.


      Custody modification cases demand careful navigation of Virginia’s statutory and case-law requirements. At Smith Strong, PLC, our attorneys are experienced in evaluating whether a materialchange in circumstances exists and advising parents on the evidentiary burdens involved. If you are considering modifying a custody order - or responding to one - our team can guide you through the process while protecting your parental rights and your child’s best interests. Call our Richmond office at (804) 325-1245 or in Williamsburg at (757) 941-4298 to schedule a confidential consultation.