The 7 Most Important Things to Remember in your Custody Case
In the time between now and your custody case, you’re probably not going to be able to learn absolutely everything there is to know about child custody law in Virginia. There’s a lot of law out there, and it’s hard to read up on everything and know every single little nuance that might be an issue in your case. Not only is there case law, there’s also common law—which is what we call the law that is essentially made by judges, rather than made by legislators. When judges make a ruling on a potential issue, it becomes its own kind of law. Based on these precedents, other judges and attorneys know how their own present and future cases will be decided. If something is bad law, it can be overturned on appeal, but, at least generally speaking, between the statutory law (the law you find in the Virginia Code) and the case law (made by judges) most judges and attorneys have a good idea about how the issues in their cases may be handled.
There’s always gray area, though, and not every judge will always rule the same as every other judge out there. Still, from experience, attorneys know a lot about the law and how things are normally handled—and, sometimes, especially in cases where lots of judges have heard cases featuring a particular issue, there can be lots of little laws that apply.
It’s unrealistic to expect that, in a couple of weeks or months, you’ll be able to pick up on everything you need to know to be completely comfortable in the courtroom. Of course, that doesn’t necessarily mean that you shouldn’t try, or that you’ll be able (or willing) to hire an attorney to represent you.
In this article, we’re going to talk about two things: (1) whether you can handle your own custody, visitation, and support case in Virginia, and (2) if so, what are the 7 main things you need to keep in mind to efficiently and effectively do so?
Where can I get help preparing for my custody, visitation, and support case?
There aren’t a lot of resources available out there to help you prepare for a custody, visitation and support case. Though I’m sure you can find some things if you perform a google search, you do want to be a little careful. Do you want to trust the future of your children to some nameless, faceless, credential-less internet source? Maybe you can get good advice there, but I would definitely read it with a healthy does of skepticism. If I were you, I think I’d probably start with the internet—just to see what I can find and
Custody Bootcamp for Moms is an intense, all day seminar designed and taught by Virginia licensed and experienced custody law attorneys from the Hofheimer Family Law Firm. Its chief purpose is to provide Virginia moms with the information they need to prepare for their custody, visitation, and support hearings. Whether they’ve already hired an attorney (and just want to check up to make sure he or she is doing the job properly) or are gearing up to represent themselves, Custody Bootcamp for Moms teaches everything they need to know—from what the ten, all-important custody factors are (the ones that you need to build your case around and the judge has to listen to), to how to question and cross examine witnesses (and survive being cross examined yourself), how to give a killer opening and closing argument, what to wear, when to sit and stand, how to address the judge properly, how to work with guardians ad litem and custody evaluators, how to prepare a trial notebook, how to get your good evidence in (and keep his out), and lots more.
The seminar lasts all day—or, at least, until we’ve gotten through our outline and the last woman’s last question is answered. We offer it quarterly—in January, April, July, and October—and provide lunch and an information-packed workbook that is yours to write notes in. The cost to attend is $197, which is less than the cost of an hour with a moderately priced area attorney—and you get 6-8 hours (on average) with at least two attorneys! The seminar was created and is currently taught by Kristen Hofheimer, who has a great deal of experience handling all sorts of custody-related cases. Caitlin Walters, who also worked as a guardian ad litem before she came to our firm and offers an interesting perspective on custody cases, is also on hand to answer questions from the moms attending. For more information on the seminar, just click here.
But do you really think I can do it on my own?
If you’re wondering whether you can REALLY represent yourself without hiring an attorney, you should request a copy of my free report. It’s aptly titled, “Can I REALLY Represent Myself in a Custody Case?” and you can get a free copy by clicking here. We’ll send it to you right away, and you’ll also be able to join in on a super informative email sequence that will give you all sorts of practical tips and pointers that you should know if you’re preparing for a custody, visitation, and support case.
If your custody case is at the juvenile court level, it’s definitely possible to represent yourself. The good news, as far as juvenile court cases go, is that anything that happens is automatically appealable to the circuit court. A lot of women decide to try their hand at handling their custody cases at the juvenile court level (especially if they’ve already attended or plan to attend Custody Bootcamp for Moms), because they know that if things don’t go their way, they can appeal to the circuit court and hire an attorney (or continue to represent themselves). Anything heard on appeal to the circuit court is heard de novo (which is a Latin word that means, basically, brand new), so nothing that happened in your juvenile court hearing would come up with your case on appeal. You get a brand new, fresh start—which is reassuring.
If you’re already in the circuit court, you won’t get an automatic appeal. You could appeal, if there’s a mistake of law in the decision in your case (but not a mistake of fact), but I definitely wouldn’t recommend handling an appeal without hiring an attorney. The appeals from the circuit court to the Supreme Court of Appeals aren’t de novo, either—all the information from your earlier case at the circuit court level comes up with you, and the judge won’t re-hear the facts at all, but will instead rely on the record created by the lower court judge. It’s possible to represent yourself at the circuit court level, but it’s definitely riskier because you can’t appeal as easily.
Do you have any big tips for me?
Yes, I do! You can’t absorb everything—there’s just too much. But if you’re gearing up for a custody case, there are at least 7 big things you should know ahead of time. (Like, if you remember nothing else, remember these points.)
1. Never, ever bad mouth your child’s other parent.
I know, it’s tempting. And it’s easy to think, “The child isn’t around, so what’s the harm?” But there is harm. Partially because if you’re saying it, even when the child isn’t around, people assume you’re saying it all the time. If you’ve said it before, and other people have heard you, when it comes up in the courtroom, it’s going to seem very believable that you’ve said when the child could hear you, too.
Not only that, but once you start saying those things out loud, you make it easier to just let it slip later on. The habit, once made, is harder to break. It’s best if you do your best to not bad mouth your child’s other parent. Not ever—not now, not later, not in front of the child, and not out of the child’s hearing.
After all, how would you feel if your child’s father was badmouthing you? It’s really bad if he says it in front of the child, but it’s also bad if he does it to mutual friends or family members. After all, you’ve got to face those people (and raise your child together) for a number of years still. It’s easiest if you don’t allow prejudices to worsen or make your job harder than it already is. Garner as much support as you can from friends and family—and a big part of that is NOT creating more drama or more ill will than there already is.
So he already is badmouthing you? Well, it won’t make him stop if you start telling everyone what a complete and total jerk he is, will it? The surest way to make him stop is to make sure that you’re careful about what comes out of your mouth.
He’s determined to keep badmouthing you, even though you’re doggedly refusing to say anything bad about him? I’m sorry. It sucks. It’s not fair. But you’re doing the right thing—both for you, your friends and family, and, most importantly, for your child. Keep on doing it, even if it seems like it doesn’t matter. It does. Bad mouthing you certainly won’t help him get or keep custody. In fact, I’ve seen that kind of behavior lose custody cases.
2. Read the ten critical child custody factors and be prepared to base your case around them.
Yes, they’re that important! In Virginia, they’re called the “best interests of the child factors.” When judges make a determination about custody, visitation or support (or modify an existing order for custody, visitation, or support), they’re looking at what’s in the best interests of the child.
How does a judge know what’s in the best interests of the child? Well, Virginia legislators developed the best interests of the child factors which are designed to help show judges the kinds of things parents should be doing to ensure that their child’s best interest is constantly protected and promoted.
At Custody Bootcamp for Moms, Kristen goes into detail about each factor and exactly what the judge is looking to see, including the types of evidence you can provide, the witnesses you might want to use, and how to get in the right information to put on the best case possible for your children. Still, we’ll list the ten factors here, just so that you know. Here they are:
1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;
2. The age and physical and mental condition of each parent;
3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;
4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;
5. The role that each parent has played and will play in the future, in the upbringing and care of the child;
6. The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;
7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;
8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;
9. Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and
10. Such other factors as the court deems necessary and proper to the determination.
Basically, you should read them, know them, and be prepared to discuss them in detail. Your case should be built around them. They really are that important.
3. While you’re preparing for your custody case, you should live like you have a private investigator following you.
There’s probably not a private investigator following you, but there might be. We’ve seen it happen in custody cases, and sometimes the results aren’t pretty. You should be very careful about what you’re doing, and what information you’re putting out there. Everything that you do should be carefully calculated to show what an awesome mother you are.
When the other side hires a private investigator, they’ll usually call him (or her, of course) as a witness. You should make sure that the private investigator is your BEST witness. He shouldn’t be able to say anything more than what an amazing mother you are.
You should also apply this principle when it comes to all your social media accounts—because, even if he hasn’t hired a real private investigator, he is certainly looking at your page himself! Anything that you post on any site—Facebook, Google+, Twitter, Snapchat, Instagram, whatever—should show you as a super mom. (Of course, if you choose to post nothing at all, that’s probably the safest bet.) There should be no (absolutely no) pictures of you drinking, going out late at night, hanging out with strange men, or anything of the sort.
To be safe, assume someone is always watching.
4. Remember that guardians ad litem and custody evaulators are there to give their opinion to the court, and that judges often rely heavily on them.
It can be difficult to allow someone to pry into your personal life, and that’s really what a guardian ad litem or custody evaluator is going to do. He (or she) is going to ask you a lot of questions about you, your background, your parenting style, and your feelings about your child’s father.
They’ll ask tough questions, and they’ll probably say things you feel you don’t deserve. They may not see straight through to the real issues, or disagree with you about what the issues actually are. They may be fooled by your child’s father’s schemes and tricks, and it may be endlessly frustrating to you.
Whatever happens, you need to be incredibly careful of your behavior around your custody evaluator or guardian ad litem. He (or she) is watching you and making decisions about your fitness as a parent based on what he (or she) sees from you. Don’t give him any negative material.
He probably will ask you what you think of your child’s other parent. You need to be very careful of what you say, how you say it, and how it is received by the guardian ad litem. It is generally not advisable to criticize your child’s other parent in front of the GAL; it’s probably also not a good idea to spend a ton of time extolling his many virtues. You want to walk a very fine line between not making him look like the worst human being in the history of the world (because that’s just not believable and you’ll look vindictive), and not describing him as a saint (because, if he were, why would anyone award custody to a mere mortal like you?). Probably it’s best to be vague and let the GAL or evaluator form his or her own opinion about your child’s father, rather than run the risk of looking bad by saying something you shouldn’t (or making him look too good—but that’s probably less likely).
5. Don’t lie, and always be prepared to explain less than flattering facts.
No one is a saint, and judges, guardian ad litems, and custody evaluators seem to unfairly expect you to be. They are looking for every single bad fact about you they can find, and they act like it’s the end of the world when they do. Okay, so maybe you do lose your temper sometimes. And other times, your kids eat boxed macaroni and cheese. Sometimes, too, you have too many things going on, and a kid falls down the stairs or trips and ends up with a goose egg on his forehead or a nasty bloody lip. You’ve had a drink or two at dinner at least once, and, apparently, that means you’re an alcoholic.
Sometimes, it really does seem unfair. The standards are set so high, and it feels like the GAL is just picking around, looking for weaknesses to exploit. If you look at anyone under a microscope, you’ll probably find something. It’s frustrating, and it’s tempting to do everything you can to cover up every single little mistake.
I’m not saying that you should write a list for the GAL of every single time you felt like the world’s worst mother. Just like when we talked about not badmouthing your child’s other parent, you’re walking a very fine line here. You want to be open and honest about bad things that have happened, but you don’t want to just hand over ammunition.
Admit mistakes, and never, ever lie. If you lie, not only will the something bad still have happened, but now you’re a liar on top of it all. It doesn’t help the situation. It’s best to admit, provide whatever explanation you can, and move on. Indicate the steps you’ve taken to ensure that this won’t happen again, and how you’re ready to move on.
6. Focus on the positives.
Remember those custody factors? Remember how important I said they were? Well, when you’re having those difficult conversations with the GAL or the custody evaluator, focus on those factors. Talk about what you’re doing for the kids.
You’re doing a lot! You’re coaching soccer or co-leading the girl scout troop. You’re taking them to museums and art exhibits and botanical gardens. You’re helping with homework and encouraging try outs and auditions. You’re reading before bedtime, and teaching them to cook. You’ve taught them to clean up after themselves and help the family out with a few chores. You’re working on teaching them the value of money, budgets, careful spending, and saving. You take them to church, Sunday school, and youth group. You talk about kindness, helping others, and giving thanks. You encourage volunteering, and teach awareness about children and families who are less fortunate. You kiss their booboos and take them to the doctor. You carefully administer medication, and wake at the slightest noise. You help them make arts and crafts, write letters to grandma, and buy all their school pictures, do you can document them as they grow and change.
In short, you do everything you can to give your kids the best, brightest future possible. You’re definitely concerned with the “best interests” of your children. Even though you don’t usually think about how what you’re doing meets one of the factors on the list, you’re doing it already. And, when the GAL starts talking to you about what you do for the children, you should have a lot to say.
There’s a lot of positive information out there. Spend some time gathering your thoughts and thinking about how what you’ve done applies to the ten factors. How does that make you an awesome mother? There’s lots to say, and now is not the time to be modest. Toot your own horn. Tell him (or her) what a great mom you are. Because, after all, you are.
7. Bring your game face to court.
You’ve done everything right. You’re prepared, and you’ve barely slept the last several nights in anxious anticipation. Your trial is coming up, and you’re ready.
Don’t make mistakes now, at the very end. When you show up for court, be sure you’re dressed appropriately. You don’t need to look like an attorney (in fact, it’s probably better if you don’t), but you don’t want to look like a bum off the street either. It’s best if you dress like a mom. Now, that doesn’t mean mom jeans and a turtleneck sweater; it just means you have to look like a strong, capable woman. Typically, we advise our clients to dress like they would for church. A dress or skirt with a blouse or pants with a cardigan or sweater works well. Wear something natural and comfortable for you, so you don’t spend the whole day fidgeting. Dress sensibly, not necessarily stylishly, but be put together. Fix your hair, wear a little light makeup, and be yourself.
Make sure you show up on time. If you’ve never been to the court before, check out how to get there ahead of time. Find out what the parking situation is like. Will you be able to find parking? Do you need to have some change on hand to pay for it? (Are the shoes you’re planning on wearing comfortable enough to make it from the parking lot to the court?) Make the drive at the time of day you’ll need to go to court, just to see what traffic is like. If that’s not possible, make sure you give yourself plenty of time to get there the day of your trial. Being late will cost you—big time.
Come prepared. Depending on the court you’re in, you may have a specific time slot when your case will be heard, or you may just be there at the same time as everyone else for docket call. If you’re there for docket call, then everyone else who has a case that day will have the same time listed for their case. The judge will hear a brief overview of the cases at the start of the day, and bump each one up or down on the docket. Some cases (usually, the ones that will be quick) are heard early; others (typically, the ones the judge is afraid will take longer) are heard later—ostensibly, to give the parties time to negotiate a settlement before the judge has to hear it. In that case, you may want to come prepared. Bring a snack with you; sometimes these things run through the lunch hour. Granola bars or trail mix are usually good things to bring. Don’t bring anything that could stain or needs to be refrigerated. I went to court once with a lady who brought strawberries with her. Of course, she dropped one right on her white blouse, and had to go into the courtroom with a red stain front and center.
Come prepared. Did I say that already? Well, now I mean prepared in a different way. Going to court isn’t comfortable, and it’s pretty likely that some unflattering things will be said about you. Maybe it’s the GAL or the custody evaluator. Maybe it’s a private investigator. Almost certainly it’s your child’s father, and your child’s father’s attorney. You need to be prepared for these things, and you need to be ready to handle it with composure. Don’t make faces, suck your teeth, make rude hand gestures, roll your eyes, or express dissatisfaction with these negative statements in any way. To the judge, you’ll only come across as unbalanced and immature. Stay calm, cool, and collected, and you’ll have a much better chance of convincing the judge that you’re the solid, reliable mother you’re portraying yourself to be.
That’s it! Those are the 7 things that, if you remember nothing else about Virginia custody cases, you should really, really, seriously do your absolute best to remember. Read and re-read these things, if need be. They’ll help you frame your thoughts, prepare for your case, and know what to expect. They cover all sorts of things—from practical stuff (like to figure out how to get to court ahead of time and bring a snack in case it takes longer than expected) to the “golden rules” of custody cases (those ten best interests of the child factors) and even the basic stuff (to remind you what a good mother you are—you’ve got the material, you’ve just got to organize it and prepare to present it).
You’re in a much better place than you were in before you read this article. If you’re still worried about your custody case, consider attending Custody Bootcamp for Moms—it’s a great way to get a total overview of custody cases in Virginia (heck, it isn’t even taught as clearly and concisely in law school!), so it’ll definitely help you prepare. Whether you’ve hired your own attorney and just want to check up on him, or if you’re gearing up to represent yourself and want to walk into that courtroom with your head held high, Custody Bootcamp for Moms can help.
Want a little more help? Feel free to give our office a call at (757) 785-9761 to schedule a confidential appointment with one of our experienced attorneys. You don’t have to hire us just to meet with us and get some information; it may just be that you’ve got a few questions, and we’ll certainly answer those for you. If you want to retain, we can help you there, too—we’ve got tons of experience in custody cases at the juvenile and circuit court levels, both as part of a divorce and separate from a divorce action. You’re in the right place, you’re asking the right questions, and we can help.