Juvenile and Circuit Court Procedure in Virginia Custody Cases
You think you might have to file for custody. Maybe something has been brewing for awhile. Maybe recent coronavirus concerns have forced some difficult issues to light. Maybe there’s a looming change in circumstances, like a move, a new job, a school change, or a wedding. Whatever the case may be, most parents find themselves looking at either reaching a new custody agreement or potentially going back to court to litigate custody and visitation issues.
After all, custody, visitation, and child support are modifiable based on a material change, so literally up until your kids turn 18 and legally become adults, a change is possible. In fact, change is probably imminent, because your kids are growing and changing just as much as the circumstances surrounding their upbringing is changing, and meeting those “best interests of the child” factors means changing to adapt ourselves as well.
So, what happens? Well, just like any kind of case, you essentially have two options: (1) you reach an agreement, or (2) you litigate.
If we want to negotiate an agreement, what does it look like?
You can negotiate an agreement in negotiations with lawyers, through mediation, in a settlement conference, or even between yourselves – there’s no rules, really! Just get it on paper and agree to it, and you’re good.
Hey, you’re the kids PARENTS. You can make decisions on your own, without court involvement! In fact, it’s best if you do.
But sometimes you can’t. And, hey, that’s okay too. That’s what the court, attorneys, and the rest of it (parental capacity evaluations, guardians ad litem, etc., etc.) are here for. If you can’t do it between the two of you, we can help.
If we can’t reach an agreement, what does the procedure look like in court?
If you’ve already got an agreement or a court order, you’ll start out filing your next petitions in juvenile court. Typically, we advise filing all three – custody, visitation, and child support – at the same time. The court can’t do anything you haven’t asked it to do, so having all three petitions filed puts it all properly in front of the judge. If you have questions or wonder whether that’s what you should do, give us a call, and we can talk about options in your specific case.
Once your petitions are filed, you’ll get a return date. The return date is an initial appearance, and it’s not a full trial. It’s an opportunity for the judge to hear what the issues are, appoint a guardian ad litem (if necessary), and, ultimately, set a trial date.
Do I need an attorney to go to my initial appearance?
Maybe! Certainly, just to set a trial date you don’t really need an attorney, but if anything else is happening, you might want someone there to help represent you. If you’re opposing the Guardian ad litem (or asking for one while your child’s father opposes it), you might want someone there to make an argument on your behalf.
Your attorney will help you manage the appearance and make a good first impression. (Don’t discount the importance of that!) With an attorney there, you probably won’t speak very much – which, probably, is a good thing, especially if you’re prone to crying when you’re under stress.
It can be difficult to represent yourself, no matter how many statutes you’ve read online, because you’re just too close to the case to put it on in an effective, consistent, way. A lot of times I find that clients fixate on the things that they think are important, and have a difficult time focusing on the issues that are more important to a judge.
Keep in mind, too, that once a trial date is set, you’ll have to find an attorney who is available to take the case on the date you selected – which may limit your choices. If you went with an attorney to the initial appearance, you could choose whomever you wanted, and they’d make sure that the date was one that they were available to appear. If you decided later that you wanted to hire an attorney who wasn’t available on your trial date, they might take the case and try to get it continued to a date when they could appear, but…that may or may not be successful. If not, you’d have wasted the time and money, and you’d have to hire a different attorney who has your trial date free.
What comes after the initial appearance?
You’ll have a trial date set, so now it’s time to get things in order. You may want to propound discovery, but you’ll also need to subpoena witnesses and/or experts, and line up any exhibits you’ll want to introduce.
Remember: you can’t just, for example, introduce a treatise on a particular topic. If you introduce written materials, you’ll need someone there, in person, to authenticate it. If you’re making an argument on attachment theory, you’ll want someone there who can testify about attachment theory to be questioned and cross examined. If you are arguing about school or medical records, you’ll need the doctor there to be questioned and cross examined. It’s pretty complicated!
Juvenile court trial
A trial at the juvenile court level often lasts about 2 hours, which must be split between you and your attorney, your child’s father and his attorney, and the GAL, if there is one.
Many moms are surprised that a Guardian ad litem is an attorney, just the same as your attorney, and who will have an opportunity at trial to question, cross examine, introduce evidence, and so on.
It may sound like a fair amount of time, but it goes fast! You’ll need to be organized and succinct to make sure that you can get through all the information you need to cover in a very short time. (Oh, yeah – and the judge may talk a lot, too!)
The judge will render a verdict – and that goes into effect as soon as the judge says it does, usually immediately.
What if I don’t like the judge’s verdict?
Well, that happens. In almost every case, one party or the other doesn’t like the verdict, right? In that case, you (or your child’s father, if HE doesn’t like the verdict) can appeal to the circuit court. It’s an appeal of right, meaning that you have the absolute right to appeal. It’s not based on a mistake or anything else; if you just don’t like the verdict, you can appeal.
It’s an appeal de novo, which means you get a brand new trial, and nothing from the juvenile court comes up to the circuit court. It’s a second chance to do the whole thing all over again – discovery, witnesses, exhibits, experts, etc. You can correct any mistakes you feel you made before, and refine your technique.
…Isn’t that expensive?
Yes. It’s basically two trials. Well, not basically. It IS two trials. So, yeah.
That’s why some people still choose to represent themselves at the juvenile court level, and then appeal to the circuit court if it doesn’t go well. It’s up to you, of course. But when it’s your kids, you definitely have a lot of skin in the game!
For more information about appeals, or how to manage your case, give our office a call at 757-425-5200.