If you’re like most moms, the idea of a custody case is paralyzing. You want to provide everything possible to your kids, and you’re willing to fight for what’s best for them—but your pockets aren’t but so deep. You know it costs money to fight these things out in court, and you’re worried about the short and long term effects of such a fight on your children.
You want to give your children the best, but what does that even mean? What should you do, if you suspect that a custody case is looming on the horizon? Should you hire an attorney to represent you? What if you really can’t afford to hire an attorney? After all, you’ve got a lot of financial responsibilities—rent or mortgage, utilities, groceries—and then all the other things that kids need to grow and thrive. You need high speed internet for all their school projects, a functioning computer at home, a little extra money for extracurricular fees, some money saved for summer camps, and, of course, new shoes—because their feet just don’t ever stop growing! It seems like there’s always something, whether it’s the emergency room or the orthodontist, that keeps you from having any extra cushion in your budget.
If you’ve read up on custody cases in Virginia, you’ve probably started thinking about your choices. Specifically, you’re probably wondering whether it’s possible to just do it yourself where your custody case is concerned, or whether you really just have to bite the bullet and hire an attorney.
Let’s look into this a little more. Specifically, we’re going to talk about what’s at stake, what attorneys do, whether you can legally represent yourself, what programs are out there that will help you do it yourself, and any other alternatives we can think of.
So, what’s at stake in a custody case?
Most custody cases deal with three main things: custody, support, and visitation.
Custody refers to who is responsible for the child, and it’s broken down into two categories. There is legal custody and physical custody, and the court typically handles both things (unless the parents are capable of reaching an agreement on their own).
Legal custody refers to the right of the parents to make three kinds of decisions on behalf of the child: non emergency medical care, religious upbringing, and education. In most cases, legal custody is jointly awarded to both parents. You can also have sole legal custody, but it’s unlikely that a judge would award this unless there is extreme evidence of abuse, one parent’s rights have been formally terminated, or the parent agrees to allow the other parent to have sole legal custody.
Sometimes, we see parents agree to sole legal custody temporarily, particularly when one parent is deployed or working overseas or, for whatever reason, would be unable to collaborate with the child’s other parent for a period of time. Usually, this is agreed to in a specific written agreement, and it ends when the other parent returns. At that point, legal custody would become joint again.
Because judges view legal custody as being pretty fundamental in terms of parental rights, it is normally jointly awarded.
Physical custody, on the other hand, has to do with where the child spends most of his or her time. It’s usually physical custody that people tend to fight over.
Physical custody can be either primary to one parent, shared, or split.
Primary Physical Custody
Primary physical custody means that one parent has the child most of the time. The other parent, the non-custodial parent (just a fancy word we use to describe the parent who has less time with the child), has the child for 89 or fewer days during a calendar year.
Shared Physical Custody
When parents have shared custody, it doesn’t necessarily mean that they split time with the child 50/50. It can mean that, but there’s really a lot of flexibility where shared physical custody is concerned. All shared custody means is that the non-custodial parent (again, the parent who has the child less) has the child for 90 or more days in a calendar year. Obviously, if one parent has 90 days, the other parent has 275 days—which is nowhere close to 50/50 custody. Still, shared physical custody could expand to the full 182.5 days each, if that’s what the parents want, too (or if that’s what the judge orders).
Split Physical Custody
In a split physical custody situation, the children are divided up between the parents. It’s like The Parent Trap; one parent takes one child, and the other parent takes the other child.
As you can probably imagine, split physical custody is rare. It’s not something that a judge usually orders, either. In the very rare cases where split physical custody happens, it’s usually because the parents agreed that they believe this arrangement to be in the best interests of their children. We’ve seen it mostly in cases where one child is disabled or a behavior problem, and the parents believe that they can provide the best parenting to both children by splitting them up.
It’s very, very rare, but it’s a possibility, and I tell you about it just so that you’ll be aware of all the possibilities available to you.
In Virginia, child support is calculated by a formula. It is what it is, and there are rarely deviations from the formula. An attorney can help you calculate exactly how much child support you can expect to receive, but it’s based on a few main things: how many children there are, how much you both earn (because you share the child support responsibility pro rata based on your incomes), how much you pay in work-related child care expenses (it’s a credit to whoever pays for it), how much you pay in healthcare expenses for the child(ren) (again, this is also a credit to whoever pays for it), and a couple other things—like whether either of you is paying for the support of a child or children from another relationship.
Child support is only very rarely something that is worth arguing about. Child support is almost always awarded at a specific level, and it would be awarded at that level regardless of what judge you sit in front of, who you’ve hired to represent you in court, and what ridiculous arguments your child’s father might bring up.
Does it matter whether I have primary physical custody or shared physical custody?
You should know that shared physical custody reduces the child support obligation owed by the non custodial parent. Because the non custodial parent spends more time with the child in a shared physical custody relationship, he’s given a little more credit for the money that he has to spend to take care of the child during that time. Presumably, if he has the child more time, he’s spending more money on meals, clothes, toys, activities, and other incidental costs that arise from taking care of a child. The shared physical custody support formula is based on exactly how much time the non custodial parent spends with the child, so if the non custodial parent has 90 days with the child, he will pay more in support than a non custodial parent who has 182.5 days with the child during the year. Basically, child support under shared physical custody guidelines is based on a sliding scale, depending on how much time the non custodial parent has with the child during the year. It’s the exact opposite of child support under primary physical custody guidelines. Child support under primary physical custody guidelines is not based on a sliding scale; it’s the same whether the non custodial parent spends 0 days with the child or the full 89.
Can I get more in child support?
Theoretically, the judge could deviate upwards, but it’s unlikely. (Though if your attorney thinks it’s worth asking for, by all means, go right ahead! What’s the worst that can happen?) In Virginia, there is no additional consideration for extracurriculars (like sports or music or whatever else they’re into), or fees associated with applying for college. There’s also no such thing as child support after high school. Different states have different rules, but Virginia is not one that allows for child support while the child is in college.
When is it worth fighting over child support?
Most of the time, child support is what it is and there’s very little you can do about it. If you’ve got extenuating circumstances, though, it may be worth talking to an attorney about it and figuring out what your next steps should be. Specifically, if you have a disabled child, you may need to act to ensure that your child support award can be extended past the age of 18—especially if the child is going to be unable to live on his or her own.
Visitation is what we call the time that the non custodial parent has with the child. It’s actually kind of an old school term (like alimony); these days, lots of judges and attorneys call it “parenting time” instead.
Visitation is usually very specific, because that provides both parents with as much peace of mind as possible. If you’re too loosey goosey about the arrangements, you’re just setting yourself up to be brought back into court again and again to argue over whether your child’s father has enough time with the child to be considered “reasonable.”
Your visitation arrangement should define who gets the child when, including time at mother’s day and father’s day, your birthdays, the child’s birthday, holidays (usually, we divide Labor Day, Memorial Day, the Fourth of July, Thanksgiving, Christmas, and Easter—but, depending on your religion or your family background, you may want to specify more holidays or different holidays entirely), any breaks from school, and vacation time, if you want an uninterrupted period during the summer to take a trip.
The more detail you can provide, the better. In fact, depending on the age of the child, your visitation arrangement should allow for custody and visitation to expand as the child grows older, and more and more things become appropriate. While you wouldn’t want overnights for your breastfeeding newborn, at some point, overnights with the child’s father become unavoidable. To keep your relationship with your child’s father as cordial and productive as possible (so that the two of you can be the best parents possible to your children), it’s best that your visitation arrangement can grow with the child.
Why do you want your custody and visitation arrangement to expand with the child? Well, in Virginia, anything relating to custody, support, or visitation of a minor child is modifiable based on a material change in circumstances. Why? Well, it’s the court’s job to look after the best interests of the child, and, in the court’s view, it is in the best interests of the child to be able to go back and re-review a case if things change. So, if a parent suddenly earns more money due to a promotion or a new job, the child deserves to receive the benefit of that by having an increase in the child support award. Whenever there’s a big change, either parent can petition the court to modify custody, visitation, or support—for the sake of the child’s best interests. (You should note, though, that this has nothing to do with the best interests of the parent.)
So, even though in a custody case there’s a lot at stake (custody, visitation, and support, specifically, and custody and visitation can be awarded in a broad range of ways), it’s always modifiable—at least, it’s modifiable until the child is no longer a child. If you don’t want to be brought into court again and again, you’ll want to establish a custody and visitation arrangement for the child that works for both you and your child’s father, if possible.
You’ll also want to be specific. Why? There’s a lot of danger here. If you look at the best interests of the child factors (just click HERE to see them), you’ll notice that factor number 6 has to do with the parent’s encouraging the child’s relationship with the other parent. As far as moms are concerned, this is probably the most important of the best interests of the child factors. (In fact, I’ve even heard it called the mom’s downfall.)
So, here’s what we don’t want to happen: you don’t have a specific custody and visitation arrangement, so your child’s father calls and asks you when he wants to see the child. He calls and asks for something that you’re not comfortable with (an overnight trip, a weekend with his new girlfriend, whatever)—and you say no. He takes you to court, and says that you’re unreasonably denying him access to the children. In the worst case scenario, the judge could order a change in custody. We do not want that to happen—but we’ve seen it happen again and again.
Visitation is important, and it’s something that should be carefully laid out. You can do it yourself, by agreement, or you can go to court and let a judge decide.
So, what do attorneys do?
You may be wondering whether you should hire an attorney, do it yourself, or look for some other miracle alternative. But, when you think about hiring an attorney, you probably wonder—what do they even do that’s so awesome? Do I really, seriously need an attorney?
Attorneys do all sorts of things. Mainly, it is their job (1) to help make the custody process run as smoothly as possible, and also (2) to help ensure that each client’s future (and the future of their children) is adequately protected. Those two things are incredibly important, and it’s impossible to adequately represent a client without being equally concerned about the here and now as well as the future.
Whether your custody case looks like it’s going to be contested (meaning that you can’t agree about how custody, visitation, and child support will be handled) or uncontested (you can reach an agreement and won’t have to go to court to fight about it), there are a lot of things that you’ll need help with as you move through your custody case, and there are some types of help that only an attorney can provide. It’s not just about providing guidance through the whole courtroom experience (in fact, you may not ever go to court at all); it’s also about the process of discussing options, weighing consequences, negotiating results, and carefully drafting documents. All of these things have to be done both with your current situation and your ideal (but still hypothetical) future situation in mind, so that you’re protected against any possible unintended consequences. An attorney considers everything, including modifications, possible appeals, and other things that sometimes surprise people who don’t hire attorneys later on.
An attorney brings with her detailed, in-depth knowledge of family law in general and custody cases specifically, which is critical. They know the law, understand the court system, and have experience with the local judges. Because they know the law, they know how to advise you, and they can tell you what’s worth fighting over and where to give way, if necessary. An attorney is aware of any recent updates, changes in the law, or new case law, which can impact your case (sometimes a lot).
Can I really do it myself?
Can you handle your custody case without an attorney? Absolutely. In Virginia, you’re definitely allowed to represent yourself in the courtroom in a family law case. The question is, though, do you really want to? Well, of course you don’t really WANT to (if you’re like most people, you’re pretty scared about it), but can you do it well enough that you adequately protect yourself and your children’s future?
In some cases, it might not be a good idea to represent yourself. If it looks like your custody case is going to be contested, or if your case presents some kind of complicated issue, you may have no real choice but to hire an attorney to represent you. It’s not against the rules to represent yourself, no matter how complicated your case it, but you have to ask yourself whether you’d be doing more harm than good. When you consider how much is at stake in a custody case, it’s not hard to imagine that it might be worth your while to make sure that you can pay to hire an attorney to represent you. It’s inconvenient and can sometimes be expensive, but you have to recognize the importance of what you’re doing. Whether you’re signing a custody and visitation agreement (which is just a legal contract that explains how you’ll handle custody, visitation and child support, without going to court) or letting the judge decide how to divide it all, you’re creating the blueprint for your children’s future. The money that you get (or give up) in child support will be the money that pays (or doesn’t pay) for your mortgage or rent, your utilities, and your groceries—not to mention the shoes, school clothes, textbooks, equipment, internet, and other things kids need to succeed.
In some cases, especially where the case is uncontested, it is definitely possible to represent yourself, but you should be aware of all the possible consequences of your decision. Even in cases where money is tight, lots of women find resources so that they will be able to hire an attorney to represent their interests. They borrow money from friends or family members, get loans, or even put it on their credit cards, just so that they won’t have to come face to face with their husbands in the courtroom alone.
Juvenile Court versus Circuit Court
Still, there are plenty of women who decide to handle their own cases—contested or uncontested, particularly when their cases are in the juvenile court.
Juvenile courts are courts not of record, which is important when it comes to custody cases. You can file at the juvenile court for custody, visitation, and support (all the things you want to be decided in a custody case). Juvenile courts also have a reputation for being a little more user friendly than circuit courts. Even better? If you represent yourself at the juvenile court level and don’t get the result you want, you can appeal it automatically to the circuit court. Since the juvenile court is a court not of record, nothing from your lower court case follows you up to the circuit court. Your appeal is “de novo,” which means that it’s basically brand new.
So, if you’re handling a case at the juvenile court level, there’s not as much risk as a case at the circuit court level (which would be much, much harder to appeal). Lots of women decide to try to handle their cases themselves, since they are in the juvenile court, and then, if things go badly, they hire an attorney to handle the appeal to circuit court.
As you can probably imagine, though, it’s difficult to represent yourself. You’re taking on a lot of responsibility. It takes hard work to handle a case, so you’re going to want to do as much as you can to prepare ahead of time.
What resource is out there to help me represent myself successfully?
Custody Bootcamp for Moms is an intense, all day seminar designed to give you the tools you need to either (1) prepare to represent yourself at the juvenile court level in your custody, support, or visitation case, or (2) check up on your attorney, if you’ve already hired one. It’s taught by Kristen Hofheimer and covers all the basics of handling custody cases in Virginia, including how to prepare a trial notebook, what to wear, when to sit and stand, how to address the judge, the ten most critical factors in a custody case, how to question and cross examine witnesses (and prepare for being questioned and cross examined yourself), how to get your good evidence in (and keep his out), and how to prepare killer opening and closing arguments.
There’s no other seminar like it, and certainly nothing in Virginia designed to help dads prepare for custody cases. It’s intense, but it’s full of tons of information and, if you’re preparing to represent yourself (or just want to know a whole lot more about custody cases in Virginia), you don’t want to miss it!
For more information, or to get a copy of our free report, “Can I REALLY Represent Myself in My Custody Case?” just click here.
What alternatives are there?
If you don’t want to hire an attorney, and don’t really want to do it yourself, you’re probably wondering what other alternatives exist out there for moms facing custody cases in Virginia. There aren’t a lot of other alternatives, really—most people either negotiate something (either on their own or with the help of an attorney) with their child’s father, or go to court (either on their own or with the help of an attorney) and let the judge decide. Sometimes, though, parents choose to mediate their custody cases.
Some courts require mediation to take place before they’ll hear a case. So, even if you file for custody, visitation and support in your local juvenile court, you may be required to attend a mediation session before you get a court date. You can also elect to participate in mediation without an open case by looking one up on the internet (or in the phone book, if you’re old school like that) and making an appointment.
Lots of people really like mediators and, in some cases, mediators are able to settle a case without costing as much as an attorney might. Still, you would do well to remember that, in most cases, mediators are not attorneys, and therefore can’t really advise you on your legal rights. They can’t tell you what a good agreement would be, what a judge might order, or whether you should sign the agreement they propose. Because of this, we usually recommend that moms who want to meet with mediators meet with an attorney before and after mediation, first to make sure that you know what a good agreement would look like (or what a judge might award), and then afterwards to make sure that you know what you’re signing before it’s too late.
Mediation can be a great option, but it’s also risky.
If you have any questions, want to schedule an appointment, or want more information about Custody Bootcamp for Moms give our office a call at (757) 699-5997.