What is discovery in a Virginia child custody case?

Posted on Apr 22, 2024 by Katie Carter

Discovery – whether as part of a divorce or a child custody case – is essentially the same.  It’s the legal process we use to determine and gain access to the information that we don’t have.  In a divorce case, much of the information we’re looking for is financial, especially if our client has stayed at home or has otherwise not had access to the financial information.

In a custody case, though the process is the same, the information we’re looking for is probably different.  Though we still might want to know some financial details, especially as it relates to being able to appropriately calculate child support, we probably mostly want to know things that relate more to what custody and visitation arrangement is going to be in the child(ren)’s best interests.

What we ask for will depend on the case and whatever strategy we’re planning for moving it forward.  If we have, for example, a dad who has a questionable girlfriend, we might ask questions related to her.  What does she do for work?  What criminal convictions does she have?

If we’re concerned about drug or alcohol addiction, or even mental illness, we might ask about diagnoses.  Criminal convictions.  Treatment plans, prescribed medications, and even things like rehab stints or times that he was voluntarily or involuntarily committed.

We can often get – or, at least, request – a wide variety of information that relates to the case and that helps give us information that we need to plan our argument in the event that it comes down to litigation.  It often doesn’t, though.  In custody, just like in divorce, cases settle upwards of 90% of the time.  It’s rare, really, to go all the way through to a contested trial – though it’s probably more common in custody cases than in divorce cases.

Keep in mind that custody cases can take several forms, too.  You can have a custody case that is part of a larger divorce action.  These are filed in circuit court and, although custody and visitation is a factor, is it first and foremost considered a divorce case.

Custody can also be a standalone case, whether because the parties never married, because the parties (although married) want to resolve custody and visitation without a divorce action being filed, or because custody was already initially determined but now a modification is needed.  These cases are filed in the juvenile court.

Important things to remember:

  • A custody case filed in juvenile court will be divested to the circuit court if a divorce action is filed – even if it’s the morning of the hearing and you (and your attorney) are all prepared and ready to go.
  • After a verdict is rendered in juvenile court, it is automatically appealable to the circuit court so long as the appeal is noted within ten days. So, win or lose, you (or your child’s father) can appeal to circuit court and get a new trial de novo – meaning a brand new trial.

Discovery is often one of the first steps after a case has been filed.  You must file to open your case, though – whether through a complaint to begin a divorce case or whether with a petition for custody, visitation, and/or child support to begin a custody case in juvenile court – before you can propound discovery on the opposing party.

In an agreement case – whether a separation agreement or a custody agreement – there is no discovery.  That doesn’t mean that no disclosures are made; in most cases, disclosures are made mutually in order to keep the case out of court.  But the only way to conduct formal discovery is to file a petition to begin your case in the relevant court.

What’s the difference?  Can’t we just make mutual disclosures and be done with it?

The main difference between discovery and just mutually sharing information back and forth is that, once a case is filed, the other side is REQUIRED to respond.  You issue discovery and they have 30 days to respond.  If they don’t, you can file and ask that sanctions be imposed.

In a negotiated case, though, you don’t have any right to recourse if they won’t provide all the documents you need.  You can’t compel them to participate in any other way, which may force you, ultimately, to file for divorce or custody and visitation anyway.  There are a lot of things we might need that we can’t get any other way than through discovery, especially if he’s not willing to participate.

That’s actually one of the major limitations across the board.  You can be as reasonable as you want, but if your child’s father isn’t willing to negotiate and share information back and forth, then there’s no point continuing to pretend that it is working.  You may need to just file and conduct formal discovery.

It would be great if we could just make mutual disclosures, but you can’t do it on your own.  Your child’s father would have to participate and give you all of the information that you need.  If you don’t have the information on your own, the only way to get it is through cooperation with the other side.  Failing that, you’ll have to file and use the authority of the court to support you.

How do you conduct discovery?

We can use a number of different methods to get the information we need in discovery, but the most common ways are interrogatories, requests for production of documents, requests for admissions, and depositions.

Interrogatories are a set of questions to which a written answer is required.  Requests for production of documents, on the other hand, request the specific supporting documentation, and usually relate back to the interrogatories.  A request for admissions is a specific statement that the person who receives discovery has to either admit or deny; in the event that requests for admissions are not answered, they can be deemed as admitted for the purposes of the litigation.  A deposition, on the other hand, is an opportunity to ask questions – usually, with your attorney and a court reporter present – and give oral answers.

Depending on the case and the specific concerns, we may employ some combination of these tactics or even all of them.  Each is used for a specific purpose and to get specific information.

Discovery can be very important to a developing case, especially when there are complex or challenging issues involved.  This is one of the areas where it can be especially helpful to have an experienced Virginia family law attorney managing your case.

For more information, to request a copy of our free custody book for Virginia moms, or to get more information about our custody seminar for Virginia moms, give us a call at 757-425-5200 or visit our website at hoflaw.com.