What if my child is subpoenaed in a custody case

Posted on Sep 24, 2018 by Katie Carter

Custody cases are about as common as…well, something that’s very common. We see them literally all the time, and they can come about in a bunch of different ways. Obviously, you don’t have to be married to have a custody case; you just have to share a child in common with your former partner. So, some custody cases are part of a larger divorce action, while others relate only to shared children. Still others are modifications of previously determined cases, whether for formerly married partners or partners who never married at all.

As such, custody cases aren’t one size fits all, and they don’t necessarily follow the same path. For a custody case that’s part of a larger divorce action, either a separation agreement will be reached, or a contested case will be filed in the circuit court where all outstanding issues related to equitable distribution, support, and child custody will be determined.

Other custody cases, though, are relegated to the juvenile and domestic relations district court. These cases can run an even wider gamut of potential situations. For married partners who just need custody, visitation, and support determined, the juvenile court can provide some solutions. For never married couples, the juvenile court can help determine issues related to the custody and care of minor children. For families who require modification or a previously existing court order or custody agreement, the juvenile court is really the only option.

Sometimes, though, in juvenile court, a child is subpoenaed. What happens then? Do you have to bring the child to court?

Well, there’s really only one answer. It’s a subpoena. It’s a court order. It’s not really optional. So, if your children have been subpoenaed, they have to come to court.

My experience, though, is that generally judges don’t want to talk to the children. They don’t even like to do “in camera” (basically, private interviews in chambers) meetings with children because of the potential damage it can cause. Even meeting privately with a judge is scary to a child, and it creates the presumption in the child’s mind that his or her opinion has to be given. Then, either it’s listened to, which can be harmful (because then how does mom or dad feel if he or she knows I didn’t choose him or her?), or it isn’t – in which case it’s probably even more harmful! (The judge talked to me and STILL doesn’t care how I feel!)

Though I’m sure you’re really worried about the potential for damage to your child, in most cases the judge won’t talk with the child anyway. In fact, at a recent continuing education seminar I went to a few weeks ago, the two of the three judges on a panel discussion told the group that they didn’t always realize that kids were even being subpoenaed! All three agreed that they’d prefer not to speak to the children, and only very rarely do so.

Keep in mind, too, that the way these custody cases progress, usually the children are subpoenaed to the first court appearance. That first appearance – known as the “initial appearance” – is one where not a lot happens. Sometimes, a person’s petitions are granted or denied, but not very often. Usually, this is where the judge determines what the issues are, appoints a GAL if necessary, and sets the matter for trial. As far as damaging effects go, the experience in an initial appearance would be minimal – and, besides, judges will mostly order that the children sit outside the courtroom while the hearing is happening.

When will my child’s preference count?

Chances are very, very slim that the judge will hear from your child. But when does your child’s preference matter?

The simple answer is when your child turns 18. At that point, he or she is no longer a child, and is free to make his or her own decisions.

Can a judge ever take a child’s preference into account? Sometimes. Though, probably, not very often.

Typically, if a child’s preference comes into play, the child will be 14 or older, and the court would have to find that the child is of suitable age and maturity to make that kind of determination. (After all, even a seventeen year old who said, “I want to live at dad’s so I can eat ice cream for dinner and play video games until 2am,” is probably not going to be listened to with any real sincerity.)

That’s not to say that the child doesn’t get to play a role in the proceedings at all. In fact, in many cases, a GAL (guardian ad litem) is appointed. It is the Guardian ad litem’s job to represent the child to the court, and to give his or her opinion regarding what is in that child’s best interests.

Will a Guardian ad litem be appointed in my case?

Probably. Judges love Guardian ad litems, and often rely heavily on them for their opinions and insight into complicated custody cases.

I see GALs appointed in most custody cases. That’s good and bad. Some GALs are great, and some aren’t – but, either way, it’s important to work with your GAL carefully throughout your case. Their influence is super important, and you have to remember that the GAL will make a recommendation at the end of the case. You want to make a good impression, and that doesn’t mean telling the GAL 101 reasons your child’s other parent shouldn’t be anywhere near your child. (Fair warning: that doesn’t often bode well.)

Working with a GAL is fraught with difficulty, and you’ll want to tread carefully. Custody cases are no picnic, but with careful planning and goal setting you can put yourself in the best position possible to navigate the complexities.

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.