Appealing Juvenile Court Decisions in Virginia

On Monday, we talked about how good moms can lose custody.   It happens all the time, and I’m always surprised at how many moms don’t take custody cases seriously, and wind up losing custody of their kids.  They fall prey to some of the common mistakes we discussed on Monday, and they’re left with an order giving dad custody of the kids—a nightmare they never thought could actually come true.

Sometimes, it’s lack of preparedness.  Sometimes, it’s making a tactical or procedural error.  Whatever the case may be, good moms lose custody.  If you find yourself among the unlucky few, you may be wondering what on earth you can even do about it.  Obviously, you’re shaken to your very core, and you want your kids back – STAT.

So, what do you do?  What happens if you lose custody of your kids?

The good news is that you’re not necessarily done.  If you’re not resigned to your fate, you can appeal your decision from the juvenile court to the circuit court.  The catch?  You’ll have to note your appeal within ten days of the entry of the order.  TEN DAYS.  There will be no extensions granted; that’s not how the law works.  You have only ten days to decide whether or not to appeal your case.  When you appeal to the circuit court, you get a brand new trial.  We call it a trial “de novo”.

That means that nothing from the juvenile court comes up to the circuit court.  The judge won’t know what happened at the lower court, so you’ll get a whole extra shot at it.If you didn’t have an attorney before, you can hire an attorney now.  (In fact, if you didn’t have an attorney before, you’ll definitely want one now—the circuit court is nowhere near as user friendly as the juvenile court.  And, regardless, you’ll want to be sure you get it right this time, since appealing past the circuit court is nowhere near so easy!)  You only have ten days, though, so it’s a decision you’ll have to make quickly.

What if you lose on appeal to the circuit court?

Appealing a decision after the circuit court level requires that you find a mistake of law.  That means that the judge inappropriately applied the law to a particular point in your case; it doesn’t mean that he misunderstood (or inappropriately considered) the facts involved.

It’s really, really hard to get an appeal past the circuit court.  By that point, you’d be in the Virginia Court of Appeals—and it’s really rare that you’d get that far, especially in a run of the mill custody case.If you think that there may be a mistake of law in your case, you’ll want to order the transcript (hopefully there was a court reporter at your hearing – if not, you are totally out of luck) and let an attorney review it to see whether there are any potential errors.

If the attorney feels that there are errors, it may be possible to file an appeal; if not, though, your case is done.  At least for now.I don’t have a way to appeal, or the ten days is past, but I’m not happy with the decision in my custody case. Well, you’re not stuck with a decision in a custody case forever.  You can always, always modify custody – remember, we said on Monday that custody determinations are based on the best interests of the child factors.

You’ll need a material change in circumstances in order to modify custody, but, over time, you shouldn’t have a hard time finding a material change.  All sorts of things can constitute a material change – a promotion or demotion, a new job, a move, a marriage, whatever – and when you go back to court you can ask that custody be changed.By that point, you should have extra information available to you, too – like how well the children are dealing with the change in custody.  You can get therapists to testify, if they’re in counseling, and can show grades and stuff to demonstrate how well they’re doing in school.

Courts typically won’t just hear a petition for modification whenever; it should be 6 months to a year since the last modification or determination of custody was made.  You can’t go in and out of court whenever you want, but you’ll be able to try to modify custody every year or so until your child turns 18 (provided, of course, that you have a material change in circumstances).

The court will broadly construe what constitutes a material change, because, of course, the most important point is what’s in the best interests of the child.  Chances are, you’ll be stuck with the same GAL every time your case comes back up, though, so you’ll want to do what you can to foster that relationship as best you can.Anything relating to the kids is going to be modifiable, not just custody – visitation, child support, and so on.  So, it can all change any time you go to court.

Is dad’s case getting stronger the longer the kids live with him?

Well,  yeah.  Probably.  The longer the kids live with him, the longer they attend school in his locality, the better his argument for keeping custody – provided, of course, that the kids are doing well there.  It does get harder and harder for someone else to make a change, because the transition would be difficult on them (and the court is looking at what’s in the best interests of the children).  Custody cases are hard, especially if you’ve already lost custody.  You’ll definitely want to take it seriously, and make sure that you take the steps now that you need to take to make sure that the next time you go to court you’re better prepared.  It doesn’t mean you’re a bad mom, but you are going to wan tto tread carefully and plan for your next time in court.For more information, or to schedule an appointment with one of our licensed and experienced Virginia divorce and custody attorneys, give our office a call at (757) 425-5200.

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