The legal process is not at all intuitive, so if you’re wondering what to expect – well, that makes a lot of sense. Custody cases are some of the more challenging cases to navigate, too, because they’re handled in juvenile and domestic relations district courts, which – if you’ve had any run ins with the law before – is probably not where you’ve found yourself.
Divorce cases often include a custody component and those cases are found in the circuit court. For our purposes, I don’t view these as “custody” cases, even if – to you – custody is the most important part of the case. If you are also getting a divorce, your case is a divorce case. You just also have minor children involved, so you have to determine custody and visitation as part of that divorce action.
A custody case is almost certainly one where there’s not a divorce involved.
I’m married. Does that mean I can’t just file for custody, visitation, and child support? Do I have to do the whole divorce, too?
Okay, it’s true. Technically, you could file just custody, visitation, and child support when you are still married to your child’s father.
There are a couple catches here, though. The big one is that, if either of you ends up filing for divorce when custody, visitation, and child support petitions are pending in the juvenile court, your case will be divested to the circuit court. This is true even if the divorce is filed on the morning of your custody hearing. The juvenile court will be divested of authority – meaning, it is literally taken out of the judge’s hands – to determine an outcome in your case. Now, that also comes with the caveat that a hearing has to be set within a certain period of time, so you’ll want to make sure all the specific requirements have been met, but … you could wait and wait and wait for your first appearance or trial date, only to find that your husband has filed a divorce.
Then, you’ll have to handle it all – custody, visitation, and child support, PLUS all of the issues in your divorce – together in the circuit court.
Not only that, but the court often isn’t that helpful with unhappily married people unless and until they’re going through a divorce. If you’re living under the same roof, the judge may refuse to handle custody altogether.
It’s also just difficult to handle any particular issue in a vacuum. Moms tell me all the time that the only thing they want is custody but, then again, that’s not really how this works. Custody, visitation, and child support are all modifiable based on a material change in circumstances. Asset division is not. So, if you don’t get your share of the assets – retirement, real estate, personal property – or support – spousal support, alimony – that’s not something you can change. You don’t want to put yourself in the position of having bargained it all away for custody, only to find that he’s going to make a motion to change custody later and you have a reduced ability to fight him on it.
So, what is involved in a custody case?
A custody case is one where custody has never been determined or where custody is coming back again on a modification. The only issues involved are child custody, visitation, and/or child support.
No matter what, the steps are the same. Petitions are filed, served on the opposing party, and a return date is set.
The initial appearance
Your first time in court is an initial appearance. Usually, at an initial appearance, the judge just determines what the issues are, if they can be resolved, or if a trial date will need to be set.
Usually, a trial date is set. It’s possible, if he doesn’t show up, that you could get what you’re asking for on that first day, but don’t get too excited. That’s not something that happens all the time – and, even if it does, the court may find that there has been an issue with service of process and give him even more time to respond.
A Guardian ad litem is also usually appointed, at least in the Hampton Roads area. I know different jurisdictions handle these things differently; some are more or less inclined to use a GAL. If you don’t have a list of names, and/or you and your child’s father can’t agree (with or without counsel), the court will appoint someone from the list of potential court appointed Guardians ad litem. It is usually better to choose someone who you know will do their job than to take a gamble on someone on the court appointed list.
After the initial appearance
After the initial appearance, it’s time to prepare for trial. This is when you’ll conduct formal discovery, maybe attend court-ordered mediation or parenting classes, participate in a settlement conference, or entertain other settlement offers.
The Guardian ad litem’s report
Before your trial, the Guardian ad litem is supposed to prepare a report that covers what her specific recommendation(s) is/are. You should have access to this report, but – in some courts, like Virginia Beach Juvenile, you won’t be able to have a physical copy. Check with your court and/or your attorney to verify the rules regarding these reports in your jurisdiction.
The trial
The trial, which is usually set for a period of about 2 hours, is where you present all of your evidence, question all your witnesses, and make your arguments regarding custody and visitation. Your hearing time will be essentially split into two or three pieces, considering both opposing counsel and your Guardian ad litem (who is an attorney, too) will have an opportunity to make their own cases, offer their own evidence, and introduce their own witnesses.
The judge will usually make a ruling at the end of the hearing.
The appeal
If you don’t like the result at the juvenile court, you have an automatic appeal of right to the circuit court as long as you note that appeal within ten days of the final order. This is a right that extends to both the petitioner (the person who filed) and the respondent (the person who didn’t file the petitions initially).
You will have to follow the lower court’s order unless and until the circuit court makes a different ruling, but you will have essentially a whole second trial. It’s ‘de novo,’ which means it’s brand new – nothing from the lower court is going to influence the finding of the circuit court.
Many people, because of the expense associated with hiring attorneys and the somewhat high probability of an appeal, will wait until the circuit court appeal to hire an attorney. It is, of course, entirely up to you.
After the circuit court, you can appeal to the Virginia Court of Appeals (and then, after that, the Virginia Supreme Court), but those are not appeals of right; you have to meet certain criteria. For an appeal to be heard by the Court of Appeals, a mistake of law; for the Supreme Court, the court has to agree to hear your case based on a vote between the judges.
For more information, to request a copy of our custody book for moms, or to register to attend Custody Bootcamp for Moms, give our office a call at 757-425-5200.