When your custody case is part of a divorce

Posted on Oct 2, 2019 by Katie Carter

Custody cases can take different shapes depending on what the underlying issues are. Basically, there are two types – custody where you and the child’s father weren’t married, and custody where you’re also getting a divorce.

Today, we’re going to talk about divorce cases where custody is an issue.

Why does it matter if we’re also getting a divorce? Isn’t a custody case the same regardless?

The basic issues in a custody case are the same regardless. You’ll have to either agree to or let the judge decide how custody (legal and physical, we’ll get to that in a minute) and visitation will be handled. But that’s where the similarities end.

A divorce gives you a few more options – or, at least, to start with it seems that way. You can either file for custody, visitation, and child support in the juvenile court, or you can go ahead and file for divorce in the circuit court, and get it all taken care of at once.

Is juvenile court or circuit court better for me?

This is a tricky question. It’s not really that one court or another is better or worse, but there are advantages and disadvantages depending on which court you find yourself in.

Juvenile and Domestic Relations District Court (J&DR)

Juvenile court is both less formal and more user friendly. If you’re attempting to resolve custody issues without an attorney, you’ll probably be given more leeway by the judges and clerks in juvenile court.

In custody cases in juvenile court, judges are often quicker to appoint Guardian ad litems. A Guardian ad litem is an attorney appointed by the court to represent the child’s best interests. The Guardian ad litem (or GAL, as they are often known) will meet with you and your child’s father as well as the child before the final hearing, where she will give a final report recommending the custodial arrangement she thinks will be best. She, as an attorney, will also be able to question and cross examine witnesses, just like a regular attorney. You will likely have to pay for the GAL’s involvement in the case, though – which can be in addition to paying your own attorney.

Keep in mind, though, that anything that happens in the juvenile court is automatically appealable to the circuit court. In order to appeal, you (or your husband, if he’s unhappy with the result) will have to note an appeal within ten days, and then it’ll automatically go up to the circuit court – where you’ll have to do the whole thing over again.

This appeal is an appeal of right, meaning that you can use it no matter what happens. It doesn’t matter what happened; you can just appeal because you don’t like the answer. That can be good, in the sense that you can try to represent yourself first without an attorney to see what happens, but it can also be bad in the sense that if you lose you have to follow the lower court’s ruling until the circuit court has a chance to rule, and also that you’ll have to have a full trial on custody twice.

Once custody and visitation are determined on an initial basis, it’s also subject to modification. Whenever there has been a material change in circumstances, custody and visitation is subject to change. Those petitions for modification would take place in the juvenile court, but, again, you can appeal if you don’t like the judge’s verdict. Alternatively, you could take the decision out of the judge’s hands, at any stage and in any court, if you or your husband were able to reach an agreement about how to handle custody and visitation.

Circuit Court

Circuit court is a higher court than juvenile court. In circuit court, you’ll likely find that the clerks and judges are less friendly and helpful. They are also more strict about the procedural rules you must follow, and you may find yourself excluded from presenting evidence, questioning witnesses, and asking for specific relief to be granted if you don’t follow them.

In circuit court, it’s much, much more difficult to get around without an attorney. In fact, I really don’t recommend it.

Circuit courts are less likely to appoint a GAL, too. Though it does happen, and with some frequency, they don’t do it as quickly or as easily as in juvenile court.

Additionally, a circuit court ruling is more or less final – which is nice, and also scary. It’s good to know you won’t have to do it again just because your husband has sour grapes, but also that puts a lot of pressure on you, your attorney, and the evidence and witnesses you present at your circuit court custody trial.

You CAN appeal a ruling at circuit court, but it’s not an appeal as a matter of right. You have to note that there was an error of law, as opposed to an error of fact, which is a fairly difficult thing to do. Appeals to the Court of Appeals are super duper rare (and also exceedingly expensive).


So, one other thing you probably need to be aware of is divestiture. Since your case is also part of a divorce, and a divorce can’t be resolved in juvenile court, one or the other of you has the option to divest.

What does that mean? Well, if a case has been filed in juvenile court for custody and visitation, the other spouse can, AT ANY POINT, file a divorce in circuit court. That divests – essentially, removes – the case from the juvenile court’s jurisdiction completely. The juvenile court judge can no longer decide the case and has to hand it up to the circuit court.

Strategically, this can be a smart move to make. If it happens to you, though, and your husband divests the juvenile court of jurisdiction (particularly if he does it at the 99th hour, after your attorney has spent a lot of time and energy preparing for the juvenile court hearing), it can be expensive and infuriating.

There’s nothing I – or any other attorney – can do about it, though. Divestiture is a right, too. Because there’s also a divorce, the case is really probably more appropriately earmarked for the circuit court.

Circuit court isn’t bad, any more than any other court is bad. It’s intimidating, for sure, especially if you’ve never been in court before. But it’s also convenient (not to mention cost effective) to resolve custody and visitation alongside the other divorce-related issues.

After all, if you resolved custody and visitation in juvenile court, it’s still subject to appeal – and that doesn’t get you anywhere as far as your divorce case is concerned, either.

For more information or to schedule an appointment with a licensed and experienced Virginia divorce and custody attorney, give our office a call at 757-425-5200.