modify custody - valid reasons?

Court hearing is set for tomorrow; I'm representing myself (& child). Custody order is one year old; 50/50 joint legal & physical. Visitation order = Mon & Tue w/father; Thur & Fri w/mother; Wed, Sat & Sun shared alternately each week.

I'm going to ask the court to award me primary physical custody, child support, shared visitation tranportation, and find him in contempt for violating the court order in two specific ways.

My question is whether the following qualify as ('changes of circumstance') reasons which would move the court to modify custody and find Ex in contempt:

1) Father's work schedule has changed since custody order was established. Unavailable to get child to school on Tues/Wed mornings.

2) Child has school attendance problem in first grade. School has called me at work to advise of child's absence. School records show child absent or tardy several Tuesdays & Wednesdays when in father's custody. (Father is at work by 5:30 AM and grandmother is unable to get child to school.

3) Child has developed a discipline problem at father's/grandmother's (same) home. I have witnessed the behavior and both father & grandmother have discussed it with me.

4) Original custody order was obtained by fraud. Ex failed to inform court that his work schedule at the airline was changing every three months according to seniority bidding. (He was unable to commit to a visitation schedule if he provided the court with this fact.)

5) Custody order was part of final decree for divorce. Part of the order stated Ex was to pay marital IRS debt. He did not...IRS took it from my income tax return last year.

6) Ex consistantly violates court order which grants right of first refusal of child care when the other parent is unavailable during their allotted visitation period. (Saturdays/Sundays Ex allows child to spend time with babysitters of his choice; avoids giving custody to me.)

7) I forgot to mention that I have accepted child's custody every Wednesday for the past year, as agreed by both parents. (Wednesday is a shared day per custody order.)

I'm not sure about VA law but in my opinion I think the contempt issues are separate. If you believe your ex to be in contempt you need to file that motion and let the judge decide. If found guilty I think your chances of modifying custody will increase. However, I also believe these issues to be dealt with in court need to be established prior to the hearing; I'm not sure that you can bring in a whole laundry list of issues without prior notice.

In regards to your first two issues, the judge would probably prefer that the two of you attempt to create an alternate schedule to accomodate Dad's schedule, as that would be what is best for the child. If you can show that you both agree on changing it up the judge is more likely to approve your request.

Your third issue will be hard to pursue, unless the child's grades are slipping or they are facing school or legal issues, just stating "discipline problems" won't go too far. You'll often get a "kids will be kids" or "it's due to their age" type of answer.

The 4th issue should have been brought up before the original order was approved. Did you have a chance to bring this up in court or did you not know about it until later? I think this and issue #5 are also separate issues which will have to be addressed via a contempt motion.

I obviously can't give you any legal advice but this is my opinion based on my husband's case in CA. The judge will always consider best interest of the child first and will want to see concrete evidence for the issues you bring forth. Do you keep a journal or log of each time he violates the order? How can you prove he is dropping the child off with a babysitter? These are things to consider before bringing them up. Good luck.