Can I have my family law case heard in the family court?

Posted on Jan 29, 2025 by Katie Carter

Family law cases can be a little more confusing than cases in other areas of law because – depending on the type of case – you might find yourself in either circuit court or juvenile court.  Though some states call juvenile court ‘family court,’ and I’ve found that’s the way a lot of people refer to it online, if you’re talking to a lawyer in Virginia, you’ll hear it called juvenile court, J&DR, or juvenile and domestic relations court.

Technically, the juvenile court is a “lower” court than the circuit court, but these two courts – though they’re somewhat adjacent to each other – have separate functions.  It may not be as easy to move at will between the courts as you might think.  Let’s talk about it.

What types of cases are heard in the juvenile court?

The Juvenile and Domestic Relations District court is where custody, visitation, child support, and separate maintenance cases are heard (among some other things, but those are the ones that are relevant for the purposes of family law litigation).

As far as custody matters are concerned, custody, visitation, and child support cases are heard there.  These cases can be either as an initial determination – meaning that custody has never been heard before – or as a modification – meaning that either one or both parents wants to change an existing court order or custody agreement that was previously entered.

The juvenile court does NOT hear custody and visitation cases that are part of a larger divorce action.

Separate maintenance is another word for spousal support.  Most commonly, spousal support is heard as part of a divorce but, in some cases, the parties will choose to live apart without finalizing their divorces.  In those cases, the lesser earning spouse can petition the court for ‘maintenance’ during that period.

What types of cases are heard in the circuit court?

All sorts of cases are heard in the circuit court – including, for example, personal injury and criminal trials – but, from a family law perspective, it is usually either divorce cases or appeals from the juvenile court.

Divorces are always filed in the circuit court.  If custody petitions have been filed in juvenile court and then a divorce is filed in circuit court, the juvenile court will be divested of jurisdiction.  This means that the custody issues will essentially be removed – imagine them being physically lifted from the judge’s desk – and placed within the scope of the circuit court judge instead.

The circuit court can resolve all of the issues in the divorce but, after divorce is finalized, custody, visitation, and child support are remanded – handed back down – to the juvenile court in the event that petitions to modify are filed in the future.

How are appeals handled?

For custody cases heard at the juvenile court level, there is an automatic appeal of right to the circuit court.  This means that, after having a full trial at the juvenile court level, either litigant can file an appeal if it is noted within ten days of the entry of the order.  Then, the case is moved up to circuit court and a trial is set.

That trial is ‘de novo’ which means that it’s a brand new trial and that whatever happened at the juvenile court level does not come up to the circuit court.  (Though, oftentimes, if you have a Guardian ad litem appointed, he or she will come up with the case to the circuit court – and you will have to pay their fee.)

After your case is heard in the circuit court, you can appeal to the Virginia Court of Appeals, but you have to prove that there is a mistake of law (rather than a mistake of fact).  Beyond that, you can appeal to the Virginia Supreme Court, but that appeal must be granted by the justices, much like in the United States Supreme Court.

Can I choose where my case will be heard?

No – not really.  Your case will be heard either in the juvenile or circuit court, depending on the specific issues presented.  Divorce is always in circuit court; custody, even at the juvenile court level, can be appealed.  You can divest the juvenile court of jurisdiction if custody has been filed but you want a divorce, but still – you’re not really choosing the court (or the judge) who will hear your matter.

It’s complicated!  And you probably feel a lot of fear about how these cases are decided, but you’re doing the right thing by asking questions and getting information.  That way, you can make the best decisions about what and when to file, whether to hire an attorney (and, if so, whom) so that you and your children are as well protected as possible.

For more information or to schedule a consultation, visit our website at hoflaw.com or give us a call at 757-425-5200.