What happens in a Virginia child custody case?

Posted on Apr 28, 2014 by Katie Carter

Custody cases can be determined in either the juvenile and domestic relations district court or the circuit court. Whether you’re in juvenile or circuit court, the court can make an temporary, or pendente lite (that’s a Latin phrase that means “while the litigation is pending”), determination of custody.

All that “pendente lite” means is that the judge has made a decision about what will create an immediately stable situation for the child while the parties are waiting for the actual trial to take place. Although these kinds of decisions are supposed to have no impact on the pending case, the reality is that sometimes custody cases can take months or even years, and having temporary custody granted can help set a precedent that may be difficult to undo later.

Regardless of the court you’re in, most custody cases follow a predictable pattern. At the beginning, the judge issues a temporary order regarding custody and visitation, appoints a guardian ad litem for the child, requires both parents to attempt mediation, requires both parents to attend co-parenting classes, and sets a trial date. It isn’t until you’ve had your trial that the court will enter a final custody and visitation order.

Juvenile and Domestic Relations Court

The Juvenile and Domestic Relations court is sometimes referred to as J&D or JDR. It’s a lower court than the circuit court, and it’s where lots of things, like custody, visitation, and support, can be determined. If you need to modify your custody and visitation arrangement, you will probably find yourself in juvenile court.

The best thing about juvenile court is that, if you don’t like the result, you can automatically appeal to the circuit court, as long as you note your appeal within 10 days of the entry of the order that you’re appealing. So, if you’re unhappy with the way things turned out, you can get a do-over. If you do nothing, though, the order will be entered and then you’ll have to live with it unless you can modify it later.

Circuit Court

If you’ve appealed a juvenile court decision, or if custody is being determined as part of a divorce proceeding, you’ll find yourself in the circuit court. If you’re appealing from juvenile court, your appeal is “de novo.” De novo is a Latin phrase that basically means “do over.” What that means is that, whatever happened at the juvenile court level never happened. The circuit court judge will make a new, binding determination regarding custody. Still, unless you get a “stay” on the juvenile court’s order, you’ll have to follow that order until a new order is entered by the circuit court.

If you’re unhappy with the result in circuit court, you may file an appeal to the Virginia Court of Appeals as long as you note your appeal within 30 days of the entry of the circuit court order. This is no a “de novo” appeal. This time, the court won’t hear any new evidence, but will look at the record from the lower court, read briefs and legal arguments, and, ultimately, determine whether the lower court made a mistake in its application of the law, or somehow abused its discretion.

You should know, though, that trial judges had a broad range of discretion when deciding these kinds of cases, so it’s incredibly, incredibly rare for the court of appeals to reverse a finding of the trial court—and, even if it does, usually it remands (or sends back down) the case to the original court to re-decide, in light of the opinion provided by the court of appeals.

If you’re unhappy with the result at the Virginia Court of Appeals, you may ask the Virginia Supreme Court to hear your appeal. This is kind of like how the United States Supreme Court works—you ask for the appeal, and the court decides whether or not it will hear it. In most cases, the court doesn’t hear appeals, unless they present a particularly novel issue of law that the court feels needs to be determined.

What is a Guardian ad litem?

A Guardian ad litem is an attorney, usually appointed by the court in custody and visitation cases, to represent the best interests of the child. It is up to the Guardian ad litem (or GAL) to make a recommendation to the court about what kind of custody and visitation arrangement would be best for the child. Usually, the judges give a lot of weight to the opinion provided by the Guardian ad litem.
Guardians ad litem usually meet with both parents and the child, conduct home visits, and so on in order to help make these kinds of determinations. Usually, the GAL makes his report available to both sides prior to the trial date, but, of course, this doesn’t always happen. We get a lot of questions about what GALs are supposed to (or required to) do in particular cases. To read about the requirements of a GAL in Virginia, click here.

Lots of parents end up frustrated or angry with the Guardian ad litem for one reason or another, but this is a particularly dangerous place to be. Remember that it is up to the GAL to make a recommendation to the judge, and you want the GAL to like you and think that you’re a responsible parent who consistently puts the child’s needs first. Complaining about the GAL or trying to get the GAL removed from your case is usually not advantageous. If you have questions about how to handle a GAL or what your next steps should be, you should talk to an attorney immediately.

Usually, both parents split the fee of the GAL.

Why do we have to go to mediation?

In a lot of cases, the court requires mediation first. This isn’t a requirement that’s limited to custody and visitation cases, but we see it a lot. The reason why is because the court prefers for people, especially parents, to make decisions on their own. Especially when it comes to determining what is in the best interests of your child, you and your child’s father are probably the people most capable of making that decision. Regardless of whether your relationship worked out, the court respects and admires parents who are able to reach a decision that puts their child’s needs before their individual needs, and tries to promote this kind of decision-making at all times.

Of course, that’s being idealistic, and there are a lot of cases where mediation just really isn’t going to work. Specifically, abuse cases come to mind. Where there is an imbalance in power, there probably isn’t really much hope that mediation is going to work. If you have an attorney, she can tell the court that mediation isn’t appropriate, but, without an attorney, you’ll probably just end up looking uncompromising. You can refuse to participate in court ordered mediation, but, of course, that will probably reflect poorly on you.

Remember that mediation is not binding, and, no matter what your mediator says, you don’t HAVE to reach an agreement that day. You can say “no,” and walk out of the room at any point. A mediator is, after all, not necessarily a lawyer (though he could be), and it’s not his job to help you make sure that you get a good deal, or that you get what the law allows you to get.

Don’t be afraid to say no, walk out, or stop mediation at any point, and you will have satisfied the court’s request.

What’s a co-parenting class?

Courts also like to require that you attend a co-parenting class. These are classes taught by professionals that help teach you about parenting with your child’s other parent. It can be difficult, and it certainly changes the family dynamic, so most moms find it helpful to have a chance to ask questions and troubleshoot some of the issues they’re having.

There are lots of issues that are unique to people who are co-parenting, and these classes help teach you what you need to know to be the best parent you can be through it all.

You don’t have to attend a co-parenting class with your child’s other parent, though some people choose to. Usually, these classes cost around $50. If you’re military, though, you can usually find a course on post or base for free, so you should contact your Fleet and Family Services office for more information.

Do I have to have an attorney?

That’s a tricky question! In Virginia, technically, you do not have to hire an attorney. Still, without an attorney, many people find it difficult to get the information they need to successfully litigate their own cases.

Why? Well, for starters, courts (and court clerk’s offices) don’t really have a reputation for being all that user-friendly. Usually, juvenile courts are more user-friendly than circuit courts, but you won’t be able to go down to the clerks office and have them tell you, step-by-step, exactly what you’re supposed to do. For one thing, they’re not lawyers and they aren’t qualified to give legal advice. For another, they don’t want to be seen as giving too much help to one side and thereby unfairly hurting the other side. The court is supposed to be impartial, and it’s hard for the court to maintain its impartiality if its offering differing levels of advice to all the people who come to it and ask.
A lot of times, though, you can get more help in the juvenile court than in the circuit court. You can also appeal your juvenile court case if you don’t like the result, so it’s definitely easier to try to handle things on your own in juvenile court, knowing that you can always hire an attorney later and appeal if things go badly.

If you really want to handle your own custody case you should definitely do your research first! The law is complicated and can be difficult to navigate, so you should have a plan before you ever set foot in the courtroom. We offer a custody seminar, Custody Bootcamp for Moms, that helps Virginia moms prepare to represent themselves in their own custody cases without hiring an attorney. It’s an intense, all-day, action-packed seminar, taught by Kristen Hofheimer. You’ll learn everything you need to know to prepare for your own custody case, including the 10 all-important custody factors, how to address the judge, what to wear, when to sit and stand, how to question and cross examine witnesses, how to craft a killer opening and closing argument, and tons more. We provide lunch, and the seminar lasts until the last woman’s last question is answered.

Like anything, you should weigh the pros and cons to decide what course of action is best for you.

What if something terrible happens and I lose custody?

Custody cases give moms tons of anxiety, and it’s totally understandable. When you’re dealing with a GAL and a judge, there are so many unknowns. It’s next to impossible to predict exactly what is going to happen, and your life (and your child’s life) is hanging in the balance. It’s disconcerting to find that someone you’ve never met can have so much control over your future.

Still, it doesn’t normally happen that, in a case where there are two good, solid parents, one will lose custody completely. Worst case scenario, these days, is that you’ll end up with some kind of shared custody arrangement. Remember that shared custody doesn’t necessarily mean that you split the time with the child 50/50, it just means that the non-custodial parent has the child for more than 90 days in a calendar year.

Again, if you’re in juvenile court and something bad happens, you can always appeal to the circuit court. If you’re in the circuit court, you have fewer options, but remember that anything regarding the children is always modifiable based on a material change in circumstances—so you can get back into court and have the same issues re-determined if your circumstances change. What constitutes a material change? I talk more about it here.

If you’re facing a custody case, it can be pretty terrifying, but you’re not alone. You can call our office at (757) 425-5200 if you have questions or would like to meet with an attorney, and you can always attend our Custody Bootcamp for Moms seminar, to get the information you need to put on the best custody case possible, with or without hiring an attorney. Good luck!