How Virginia Courts Handle the Introduction of Prior Evidence in Custody Matters

Overview

            In order to modify a prior custody or visitation order in Virginia, there must be a “material change in circumstance.” This means that something significant has changed since the entry of the prior order. For some, this can be confusing, as they may try to discuss issues that were present before the prior order was entered. However, because those issues existed before, they do not qualify as a material change in circumstances now. 

            The same is true when introducing evidence. Even if there was a material change since entry of the prior order, parties are typically barred from introducing evidence of something that happened before entry of the prior order. For instance, text messages or crazy scenarios that occurred prior to the last order are typically deemed irrelevant and excluded in Virginia. 

Case Study

            In Sitahar v. Al-Jawahry, the parties sought to modify a January 2015 custody and visitation order. Later, in a modification action, the court allowed evidence from of a February 2015 incident that involved Mother, but prohibited evidence from January 2015, just one month before, that involved Mother. Even though there was only one month between the incidents, all events of the January 2015 incident happened before entry of the previous order, while the February 2015 incident happened after entry, and therefore was admissible.

Conclusion

            Evidence is a vital part of a custody and visitation case. Smith | Strong, PLC enjoys a solid reputation in the community for our thorough preparation of evidence and exhibits in detailed case preparation meetings with our clients. Our attorneys a keen understandings of the evidentiary rules that often turn custody and visitation cases in Virginia. 

Editorial Assistance by: Kala Swenson 

H. Van Smith
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