There’s a lot of mystery surrounding our local area judges, and that’s probably especially true in the juvenile court.
In case you’re not yet all that familiar with the Virginia court system, most custody cases start in juvenile court – unless they’re part of a larger divorce action (in which case they’d be filed in circuit court). Custody is an umbrella that includes custody (as in, split, shared, or primary), visitation, and child support.
You file in juvenile court first (again, unless your case is part of a larger divorce action), and, from that point, can appeal to circuit court for any reason – and you get a brand new trial (called a ‘de novo’ appeal). When you modify, which you can do at any point 6-12 months after the initial determination where there has been a ‘material change in circumstances’, you go back to the juvenile court. (And can again appeal to the circuit court, over and over again, ad nauseam.)
In most custody cases, whether initial determinations or modifications of existing orders/agreements, you’ll go in first on an initial appearance and then later have your trial.
The Initial Appearance
At your initial appearance, the judge is mostly concerned with determining whether or not your case will settle. What does each side want, and is it possible to reach a resolution? If the parties are too far apart, a trial date will be set, usually for 2-4 hours.
A Guardian ad litem will also be appointed. It will be the Guardian ad litem’s job to meet with both parents, do a home visit, and meet the children, before making a recommendation to the court regarding custody and visitation.
Remember: if this is your first time in, your Guardian ad litem will likely follow you. If you appeal the end result, the Guardian ad litem will go up with you to the higher court and be on hand to present his or her case at your trial there. If you petition later to modify, chances are very good that your Guardian ad litem (assuming he or she is still practicing locally) will be appointed again. This person is very important, and you’ll want to make a good impression.
Your Custody Trial
At the trial, the judge will hear each side’s case in chief, including their opening and closing arguments, their evidence, witnesses, and exhibits. Witnesses will be questioned, cross examined, and, in some cases, redirected as necessary.
Ultimately, custody cases are based on the ‘best interests of the child’ which means that cases are heavily fact specific.
Whenever someone asks me what’ll happen in a custody case, I always say that it depends on the facts. Two cases that seem alike on the surface might be completely different (and, in fact, virtually always are completely different!) once you dig down into the specific facts.
What kind of custody arrangements do judges like?
It’s a decent question, but one that I have to preface with some more information to do it justice.
Judges – and lawyers, and Guardians ad litem, who are also lawyers – are not child development specialists. We’re not therapists. We’re judges and lawyers.
So, while being a judge or a lawyer can be a very nice thing, its also not necessarily a type of education that lends itself to making perfect custody arrangements.
It’s going to be up to YOU to bring in a child specialist, or therapist, or development expert of some kind to testify about the custodial arrangement YOU believe is in your child’s best interests. Likewise, it’ll be up to your child’s father to do the same to argue for what he believes is in the child’s best interests. The judge will be the one responsible for deciding which – if any – is more credible, and what specific custodial arrangement the parties will follow.
I find that judges like easy arrangements. What does that mean?
When custody is shared
The law specifically provides that judges have to consider “all forms” of custody equally. There is no mandate that shared custody be considered first. Still, these days, shared custody is fairly common, though that doesn’t necessarily mean that custody is shared 50/50. Sometimes it is; sometimes it isn’t.
Judges DO seem to like week on/week off, though. For one thing, its easy to understand. For another, it minimizes back and forth for the child.
I’ve seen 50/50 shared custody arrangements that were 4-3-3-4, but those were usually decided on by the parents. I’ve heard parents, especially parents of babies, toddlers, or younger school aged kids, say that they don’t believe that it’s good for their kids to be away from one of them for a full week at a time. I don’t think that’s a hang up that judges have, though. They seem to quite like week on/week off parenting time when custody is shared 50/50.
When one parent has primary physical
When one parent – by agreement or by court order – ends up with primary physical custody, we almost always see an every other weekend type arrangement.
Is it positively vintage? Yes, in a manner of speaking. This was kind of the OG custody agreement. Still, when there’s primary physical custody, judges seem to like it.
When the parents don’t live close to each other
In those cases – where the kids are school aged (because, of course, before school age there’s a lot more flexibility), I’ve seen one parent get most of the time during the school year, and the other get a large chunk of the summer.
Is it creative? No. Is it designed specifically with you and your child in mind? Also no. But implementing generalized custody arrangements more or less across the board means that judges don’t waste a lot of time coming up with customized arrangements that would potentially open them up to a challenge of favoritism from one side or the other. Not only that, but it probably also encourages settlement, which is a big deal for judges.
Why let a judge decide something you don’t want when you can decide yourselves? A judge would wholeheartedly agree that, really, the best person to come up with a solution regarding YOUR children is YOU and your child’s father. Not the judge!
Is it possible that something else could be awarded? Yes, absolutely. But, like I said at the beginning, it all depends on the facts. And I’m writing this in a vacuum, without any knowledge of your unique facts. Want to see whether something different might be true in your case? Consider downloading a free copy of our custody book for Virginia moms, attending our Custody Bootcamp for Moms seminar, or scheduling a consultation today with one of our licensed and experienced Virginia divorce and custody attorneys.