Custody cases can be complicated, in some ways, because they can take different shapes depending on the issues involved – and because different types of rules apply to different types of cases. What can a Virginia custody case look like?
Custody Case as Part of a Divorce Action
Custody and visitation cases often come up in a larger divorce action. Usually, for married parents, custody and visitation has never been determined before their separation and/or subsequent divorce, so this is an initial determination of custody and visitation. All that means is that custody and visitation have never been determined before.
Custody can either be decided by agreement between the parties – in this case, a separation agreement, because it’s part of a divorce action so all of the other parts of equitable distribution and support will need to be determined as well – or in court, in an order issued by the judge. In the event that the parties are not able to decide for themselves how custody and visitation (and/or any other issues in the divorce) will be resolved, they’ll have to ask the judge to do it for them.
Divorce is filed with the circuit court, with or without a custody component. No matter what the issues are, if the larger issue is divorce, it is filed in circuit court. If an order of the circuit court is appealed – which is probably unlikely – it would be heard by the Court of Appeals, and only in the event that there was a mistake of law (and not a mistake of fact) involved.
Standalone Custody Cases
Custody isn’t always part of a divorce. Whether the parents were married or not, they may find themselves just handling custody and not divorce.
You can be married and file for just custody and visitation in the juvenile court.
Even married coparents can file for JUST custody, visitation, and/or support (spousal and child) in the juvenile court. This doesn’t necessarily mean that you will or won’t get divorced. (Though it probably DOES mean the relationship isn’t going well!) If divorce IS filed, though, the juvenile court will be divested of jurisdiction and the entire case (divorce and custody and all) will be handed up to the circuit court to resolve.
This is true even if you are on the same morning of your final custody hearing in juvenile court and you or your child’s father files for divorce and schedules a pendente lite hearing. Divestiture just means that the ability to decide the case has been formally removed; the case is lifted from that court and placed within the sphere of a different court. In this case, we go from juvenile to circuit court.
If the parties were married and handled custody and visitation in the juvenile court but then later filed for divorce, it is very likely that this would be considered a material change in circumstances and custody and visitation would be modified (either by agreement or by court order, if the case was litigated) in the divorce action. In Virginia, custody, visitation, and child support are always modifiable based on a material change in circumstances. What, specifically, constitutes a material change in circumstances is going to be broadly construed with a look at the impact of the change on the child and the ‘best interests of the child,’ as established by statute.
Initial Determination
An initial determination just means that custody and visitation has not been decided before. You can make a determination of custody either by agreement or by court order. If you’re going to court, typically speaking you’ll have a minimum of two appearances: (1) for your initial appearance, and (2) for your final hearing.
At the initial appearance, it will just be up to the judge to determine what the issues are, whether a GAL should be appointed, and if/when to set the matter for a final hearing. If one party doesn’t show up or the parties seem to be in agreement, the judge can enter an order at that point – but it’s probably unlikely.
Most of the time, these are somewhat anticlimactic hearings where a GAL is appointed and a trial date set. (Keep in mind, though, that you’re making first impressions here, both on the judge AND on the GAL, who may very well follow you and your children through this case and any others that come up along the way, whether in juvenile or circuit court.)
Final Hearing/Trial
If the matter is set for a trial – this is a trial. Even though it’s “just” juvenile court, you should treat it as a serious legal undertaking. If a GAL is involved, the amount of time you get for your case on the docket – usually, a couple of hours – will be divided in three. You, your child’s father (or his attorney), and the GAL will each have a third of the allotted time to present your case, including to make opening and closing statements, question and cross-examine witnesses, and introduce evidence.
The judge will then enter an order. An order from the juvenile court is automatically appealable as a matter of right – meaning that you don’t just need a mistake of law, you don’t really need any mistake at all – to the circuit court. You get an appeal ‘de novo,’ which means that you get a brand new trial where nothing from the lower court comes up at all.
This is just the way the process works, but that doesn’t mean that there aren’t significant limitations to this model. At its worst, this is where custody litigation can become particularly abusive. At its best, it’s a chance to get a do over if things don’t go well (or if, for example, you decided against hiring an attorney at the juvenile court level and want, instead, to lawyer up in circuit court).
Modification of Custody/Visitation/Support
Once custody and visitation is established, its not set in stone. Far from it, in fact! In Virginia, we use the best interests of the child factors – established by statute – to govern custody and visitation cases.
What’s in a child’s best interests is not something that is set in stone. It’s changing as the child(ren) change – which is to say, a lot!
A modification can come up in two ways – either a case where the parties previously had custody and visitation determined at the juvenile court level and there has been a change, or, alternatively, where, post-divorce, the parties petition for a modification of what was entered in the circuit court. (After the divorce is entered, you don’t go back to the circuit court for modifications; you’re down in the juvenile court.)
In the event that there have been material changes in your family’s life, you can petition the court again to modify the existing custody and visitation order or agreement. Again, you have the option of either going to court or negotiating an updated agreement between the two of you.
From that point, it proceeds the same way – you have an initial appearance and a final hearing. If you had a GAL before, it is likely that the same GAL will be appointed again. (It is very difficult, if not impossible, to have a GAL removed.) In many jurisdictions, the same judge will often try to hear your case again, too.
A material change in circumstances is viewed broadly, and we mostly look through the lens of the impact of those changes on the child(ren) involved in the case. Generally speaking, if 6 months to a year has lapsed, then the court is willing to consider a modification (accompanied, of course, by the relevant material change). I’ve seen judges be lax about what constitutes the material change, and I’ve also had them be quite strict (in a way that surprised me). So, either way, I’d be prepared to argue, first and foremost, over what the material change IS (and that there is one).
The same as at an initial determination, the final order is appealable to the circuit court.The way we look at the courts is sort of hierarchical. I say you go “up” to the circuit court, or “down” to the juvenile court – because, technically speaking, the juvenile court is considered the ‘lower’ court. But that doesn’t mean that what happens there is unimportant or not legally binding. It’s very serious and you should expect to take it seriously.
For more information, to learn more about the Virginia Courts, to get a copy of our custody book, or to register to attend our custody seminar for Virginia moms, give us a call at 757-425-5200 or visit our website at hoflaw.com.