Filing Custody Petitions in Virginia

Posted on May 17, 2021 by Katie Carter

In all litigated cases, whether for custody or divorce, there came a point where one party or the other decided that there was nothing left to do but file something with the court.

It’s a scary moment, because taking a case to court means that, in many ways, its out of your hands. Now, instead of reaching an agreement between the two of you, you’ll have to jump through the court’s hoops (whether that means by responding to discovery, following the court’s local rules, participating in coparenting education classes, or attending mediation), follow the court’s timeline, and abide by the court’s orders.

There are lots of reasons to file for custody, but it often comes down to an inability of the parties to agree on what’s in the child’s best interests. (Though, to be fair, I think many, if not all, parents have trouble agreeing on what’s in a child’s best interests!)

It doesn’t necessarily mean that there’s one good and one bad parent; in fact, that’s rarely the case. Most often, it’s two pretty good parents doing their best.

Still, if you’re at the point where you’re thinking it may be time to file some petitions, it’s probably also time to do some information gathering. Custody cases – like any litigated case – are not easy. There are a lot of rules and deadlines to follow and, whether you hire an attorney or not, you’ll have to follow them. The difference is mostly that, if you don’t hire an attorney, you’ll have to actually know about them!

Though the juvenile court is typically more forgiving than the circuit court (and the juvenile court is where custody petitions are initially filed), it’s not law school. The court does not attempt to educate you, remind you of deadlines, or advise you on what you’ve filed or maybe even should file, based on your circumstances.

If I want to file custody petitions, where should I start?

The actual filing of the petitions is fairly easy. You can go down to the juvenile court clerk’s office, and fill them out. It’s a form, so not a crazy legal document that you’ll have to draft yourself.

But the wisdom behind what you file – whether custody, visitation, and/or child support – when to file, and even where to file, are all legal questions that you should probably have answered before you show up in the clerk’s office. Though the clerk can (and sometimes will) help you know what to put in the blanks on the fillable form, the clerk can’t (and usually won’t) give you any legal advice or point you in the right direction.

At the very least, you should start to educate yourself about custody law in Virginia, and a good place to start is by requesting a free copy of our custody book for moms. It’s pretty comprehensive, though you’ll still have some work to do, especially when it comes to familiarizing yourself with local rules.  And did I mention it’s free?

You can read through the resources available here, in our library, and also check out any of our relevant free reports related to custody cases – we have ones on breastfeeding, special needs children, physical and sexual abuse, working with Guardians ad litem, and more.
Even better, schedule an initial consultation with an attorney. Remember, you don’t have to hire an attorney to consult with one; you can always come in for a consultation, discuss your options, learn about retainers, and/or just get legal advice. You can come back, too, without retaining, for a second or even a third consultation, if necessary. You can bring your documents with you, and even get them reviewed. I can’t tell you how many times I’ve written notes in the margins of a client-drafted document to help her get it up to where it needs to be!

What if I decide I want to hire an attorney to help me handle my custody petitions?

You don’t HAVE to hire an attorney, at any point in the process. You’re more than welcome to represent yourself, whether in the juvenile or the circuit courts. The thing about the juvenile court, though, is that it’s automatically appealable to the circuit court, so if you go and get a result you don’t like, you can always note that appeal. It’s much more difficult to appeal from the circuit court – not to mention expensive.

If you decide you want to hire an attorney, though, the sooner the better. Once your petitions are filed, you’ll be assigned a return date – and then you’ll have to choose from among the attorneys available on that date, or hope that the court will grant you a continuance.
Typically, juvenile court custody petitions have two hearings – an initial appearance, and a trial. The closer you get to that trial date, the more difficult it’ll be to get an attorney involved. So you’ll want to act quickly, if at all possible.

What if HE filed the custody petitions? Do I need an attorney then?

It doesn’t matter who filed; a trial’s a trial. So you’ll want to be prepared, especially if he’s trying to get more parenting time, or decrease your child support.

You may also want to file your own petitions as well, so that you have the ability to ask for what you need. Maybe you wouldn’t have brought the petitions on your own, but, since you may find yourself in court anyway, it might be a good time to raise some issues.
Not only that, but if only his issues are pending, he can withdraw his petitions at any time! That could potentially work against you, so you’ll want to discuss your options with an attorney ahead of time to prepare for whatever might happen.

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. We can help you get those petitions filed, and keep your case moving.