For many couples, especially the ones that stay together (regardless of whether they’re married), that’s enough and it doesn’t go further than that. Even for some couples who separate or break up, it’s possible to work it out without going to court or even negotiating a custody agreement. There’s no legal requirement that you have to; it’s only there as an option to clarify expectations as it relates to an ongoing relationship between two coparents and their children.
As a part of most divorce actions, a separation agreement includes at least a cursory overview of custody and visitation. This doesn’t mean that the parties can’t get along or that they desperately need custody and visitation determined; some of them could probably make it work without having custody decided.
But most families benefit from having custody and visitation formally determined. There is often a lot of mistrust surrounding breakups – whether its just a straight breakup or an all out divorce – and that doesn’t necessarily put the parties in the best position to transition immediately to healthy, effective coparents.
Lots of women tell me that they don’t want to have a formal custody and visitation provision or arrangement, that they’d prefer to just ‘see how it goes’ or ‘adjust as we go along’. I advise against that, generally, because I think it puts people in a tricky position. To a dad, lets ‘see how it goes’ might be code for 50/50 custody. To a mom, on the other hand, it might mean that she feels she has the ultimate say and can determine whether or not visitation might occur each time it is suggested, rather than occurring on a fixed schedule.
Those are extremes, it’s true. Many people wouldn’t go quite that far in either direction, but the fact remains that its difficult for two people (let alone two people who’ve decided to break up because they already weren’t on the exact same page) to be of the same mind as far as custody and visitation are concerned. And, since custody and visitation are modifiable based on a material change in circumstances, its dangerous to start things off on the wrong foot. That sows mistrust and means that you’re much more likely to find yourself back in court (or back at the table, negotiating) before the ink is even dry on your separation agreement, custody agreement, or court order. That’s not ideal.
Continued litigation is difficult, time consuming, and expensive – not to mention damaging to the overall coparenting dynamic and each parent’s relationship with the kids. It’s generally better to work things out, whether you work them out between yourselves or whether you litigate.
For the sake of this article, I’m going to assume you agree with me. You say, “Well, I maybe don’t like it, because I’ve never been governed by a custody agreement or order before, but I accept that what you’re saying makes sense. What can I expect if I DO file for custody and/or visitation?”
A good question!
So, if you file petitions for custody and visitation, what happens next?
When you file for custody and visitation, you file in the juvenile court. Custody as part of a larger divorce action is handled in the circuit court, and is beyond the scope of this article today. (See more on the divorce process in Virginia generally by clicking here.)
You can file petitions yourself, or you can hire an attorney to do it for you. There’s also a filing fee, though the amount varies between courts.
Once you file the petitions, they’ll have to be served on your child(ren)’s father. That’s a constitutional thing; he’ll have to have notice of the suit and an opportunity to appear and state his case. If you don’t have an attorney, a sheriff will serve him. If you do have an attorney, they’ll likely use a private process server.
You’ll get a return date. That’s an initial appearance. It’s your first time in court, and usually where the judge determines whether you’re in agreement or not – and, if not, he (or she) sets a trial date. In many cases, the judge will also appoint a Guardian ad litem. You may even be asked to fill out a financial form that will indicate to the court whether you will be able to pay a portion of the Guardian ad litem’s fees.
Do I need an attorney for an initial appearance?
Whether you want an attorney is entirely up to you. You are free to represent yourself in any divorce or custody case in the Commonwealth. The juvenile court is more user friendly than the circuit court, and you also have an automatic right of appeal to the circuit court if you don’t like the result in juvenile court. For those reasons, many people do choose to represent themselves at this stage.
Make no mistake, though – it is a court of law, and you will have a full trial date set where you’ll be expected to introduce evidence, question witnesses, and make opening and closing statements to the court. It’s not easy.
You can hire an attorney, if you choose, before you file petitions, or after your initial appearance. Keep in mind, though, that without an attorney present, the court will set any date it sees fit without concern over your (or any future attorney’s) availability on any particular dates. That may make it more difficult to find an attorney later, since you’ll have to choose from among the attorneys who happen to have your date available, rather than being able to pick whomever you might choose first.
If you hire an attorney after you file petitions but before your initial appearance, you’ll ideally want your attorney to be able to be present for that hearing, too. But, sometimes, especially if you aren’t given that much notice, your chosen attorney may not be available. In those cases, an attorney will sometimes send a client with a letter confirming that the attorney has been hired to represent them in the case, and listing their available (or avoid) dates so that a trial can be set that matches the attorney’s availability.
No, you don’t need an attorney. But you may want to have one. By hiring early, though, you ensure that you have the choice of whomever you might pick first, as opposed to having to pick (sometimes last minute) from whoever is still left available on your date.
What happens at a custody trial?
Usually, the next step is the trial – unless you settle by reaching an agreement beforehand. (Lots of people do!)
A trial is just that – a trial. The plaintiff (the person who filed first), the defendant (the person who responded to the case that was filed), and the Guardian ad litem will each have an opportunity to make opening and closing statements and to present a case in chief.
It’s a tall order, if you’re planning on doing it on your own. It’s hard even for seasoned attorneys. In fact, we sometimes joke that juvenile court is like the wild, wild west, because you never really know exactly what’s going to happen, even after you’ve got 10, 15, 20, or even 30 years of experience.
If you plan to represent yourself, I definitely recommend that you check out Custody Bootcamp for Moms, and our free book for Virginia moms facing custody cases in Virginia.
Procedurally, not much changes from case to case – the basic steps remain the same. Additionally, the court is making a decision based on the best interests of the child factors, so that’s consistent, too.
Custody and visitation are modifiable later on, if there’s a material change in circumstances (and, very likely, there will be). So, nothing is set in stone, either; in 6 months to a year or more, you may find yourself back in court again. It’s best, in a perfect world, to get it done right the first time.
For more information on custody cases, or to schedule a consultation, give our office a call at 757-425-5200.