Custody cases are interesting because they can come up in a number of ways, unlike divorce. In a divorce, you have essentially two options: (1) negotiate a signed separation agreement, or (2) litigate in court.
Divorce Cases Where Custody is an Issue
Divorce is filed in the circuit court.
Custody, though, can present differently. Custody can – and often is – part of a larger divorce action. In a divorce case, we’d determine custody in the separation agreement or we’d litigate and the judge would decide. Because a divorce is filed in circuit court, that’s the court that would hear the case – and the circuit court judge would decide.
Standalone Custody Cases (No Divorce is Involved)
But not every parent is married. And, though it’s sort of rare, it’s also possible that married parents who aren’t divorcing (or, at least, not yet) might want custody and visitation determined, even though there’s no divorce filed.
Additionally, because custody, visitation, and child support are modifiable based on a material change in circumstances, a custody case can come up on a modification. (We differentiate between an initial determination of custody and visitation, meaning that custody has never been decided before between these two parties, and modifications of custody, where an initial order has been entered but changes need to be made.)
In any of these cases, custody, visitation, and child support can be filed, together or independently, in the juvenile court.
As a side note: keep in mind that, if you DO file for custody and visitation in the juvenile court as a married couple and either of you files for divorce in the circuit court, the juvenile court will be divested of jurisdiction. That’s a fancy legal way of saying that the case will be removed from the control of the juvenile court and will be placed, instead, in circuit court. This can happen even on the morning of your scheduled hearing.
If your case is a divorce case – you’re just most worried about the custody component – you’re better off reviewing this article about representing yourself in a divorce case. I understand that custody is your biggest concern, but yours is a divorce, rather than a custody, case, so this is the more appropriate resource for you.
For almost every mom facing a divorce or custody case, custody is the biggest concern. I understand completely! But there is definitely a difference in what is involved in a divorce case; this article is geared primarily towards people facing standalone custody cases.
Initial Determination v. Modification of Existing Custody Agreement/Court Order
It doesn’t matter whether it’s an initial determination or a modification of an existing agreement or court order; you’ll file a standalone custody case (one without a divorce component) in the juvenile court.
Much like in a divorce case, many of the same elements are involved: you’ll file, and you’ll have the other party served with notice (this is a Constitutional requirement). You will have the opportunity to conduct discovery. You will receive a ‘return date’.
In most custody cases, there are two dates set: the initial appearance and then, secondly, the trial date. At the initial appearance, the court will try to ascertain the issues, determine whether the parties can settle, and, if not, set a trial date. If a Guardian ad litem is going to be appointed, it will happen at this stage, too.
Though it’s possible you could find yourself in court again – on various motions, for example – you probably will just have the two appearances. If your child’s father doesn’t show up at the initial appearance, you may very well be granted whatever it is you’re asking for. If not, though, you’ll have a trial – where you’ll introduce evidence, question and cross examine witnesses, and likely be questioned and cross examined yourself.
Can I do it without an attorney?
Maybe! Like any legal case, it really depends on the specific issues and level of complexity. Some cases are just harder than others. Some require expert witnesses or specific testimony; some of the issues themselves – like reunification, parental alienation, and/or relocation, not to mention abuse – are just more complicated than others.
If your child’s father has an attorney, it will likely be more difficult. If he doesn’t, the bar isn’t set nearly as high.
In general, though, juvenile court is viewed as far more user friendly than, say, circuit court. You will likely find that the judges are more tolerant of you as a pro se litigant (a person representing herself without an attorney) than a circuit court judge would be. The clerks may be more helpful, too – though you should note that they are not supposed to be giving legal advice, they can be a good resource for procedural information.
Another important advantage of the juvenile court is that any verdict reached there is automatically appealable to the circuit court. If you get a bad result, you will be bound by it unless and until the circuit court enters a different order – but you can note an appeal within 10 days of the verdict. Your appeal is one of right – meaning that no one has to give you approval; you can do it for any reason at all – and your case will be re-heard de novo, meaning that it will be treated as a completely new case. It’s like a free do over. (Well, not free if you hire an attorney, which – at the circuit court level – you really probably should, but I mean free in the sense that the juvenile court verdict won’t follow you.)
The Guardian ad litem will follow you up to circuit court – so you’ll really want to make a good impression on him/her regardless – but it’s still a brand new trial.
Representing Yourself is NEVER Easy.
I don’t want to mislead you: it’s not easy. A trial is a big deal! But, if you’re GOING to do it by yourself, the juvenile court is the best place to do it – both because it’s generally more kind to pro se litigants and because you have the appeal of right to the circuit court.
You’ll be bound by the juvenile court’s ruling unless and until the circuit court enters a different order – and the circuit court COULD just remand your case to the juvenile court (meaning, pass it back down for the juvenile court judge to hear again). So, it’s not like you have no skin in the game. But you have less skin in the game than if you were to litigate a circuit court case yourself.
In the circuit court, you can still appeal – but only if the court of appeals finds there’s been a mistake of law applied. Many circuit court cases are not granted an appeal. It’s much more rare, since it’s not an appeal of right.
If I win, my child’s father will appeal anyway.
This is always the challenge, right? Does the juvenile court even matter – if either mom or dad is just going to appeal anyway?
Maybe you can only afford to hire an attorney once. You might make a decision that, on balance, you’d be better off hiring the attorney on appeal in circuit court, rather than putting all your eggs in the juvenile court basket. (After all, if YOU win, he still has his appeal of right.) You realize that a trial is a big deal and you’re terrified to do it yourself, but you know you’re likely going to have two trials anyway, and you’d rather conserve your resources for the circuit court trial.
It’s not an ideal situation, but it makes some logical sense. You might choose that choice.
It’s so abusive that he can just keep filing and/or appealing!
It certainly can feel that way – and, in some cases, I would definitely characterize it as abusive. It’s just the way the system works, though, so they (and also you) have an absolute right to utilize the system in the way it was designed to operate.
Maybe the system is flawed; well, actually, it certainly is, but not necessarily because there’s an automatic appeal of right from juvenile to circuit court.
If you are unable to afford an attorney for both, though, it certainly makes sense to prioritize the circuit court appearance, since that outcome is more likely to be the final one – at least, unless and until either of you petitions for a modification after your next material change in circumstances.
It’s not easy – and it would certainly require a fair amount of research on your end – but it is possible to represent yourself in a custody case. If you’re planning on it, why not check out our custody seminar for Virginia moms? It’s designed to help teach you all the things you need to know to do exactly this.
For more information about Custody Bootcamp for Moms, to request a copy of our custody book for Virginia moms, or to schedule a consultation, give our office a call at 757-425-5200.