Can I file custody and visitation petitions on my own?
It seems like a lot of the women I meet with want to talk to me in the hopes that they’ll find out they DON’T need to hire an attorney. (I try not to take it personally or let it hurt my feelings.) The truth is, though, that I understand completely. Hiring an attorney is scary. It’s expensive. And it seems like a big blank check leading you to—well, that’s the problem, isn’t it? You don’t even know where!
When it comes to child support, custody, and visitation petitions, lots of women want to know whether they can do some portion of it (or all of it) on their own, without hiring an attorney to represent them.
Do you want the good news first or the bad news?
So, the good news is this: You can absolutely represent yourself in your custody, visitation, and child support petitions in the juvenile court in Virginia. (In fact, there’s nothing stopping you from representing yourself in your divorce case, either, if you want to.)
Of course, the bad news is that this may be easier said than done. The fact of the matter is that court, any court, is tricky. You’re asking a judge to make a decision on something that he or she knows very little about, and that will probably impact your day to day life very much. In most cases, if it’s at all possible, I recommend that most people try to reach an agreement before turning to the court to settle their disputes. Why? Because it leaves the decision making in the hands of the people who know the most about the situation, and it also generally results in the happiest people after the fact. Of course, that’s a bit pie in the sky in many cases, too. You may be thinking, “Well, Katie, whoever you are, if I could get him to agree I wouldn’t be here, reading this blog of yours, now would I?”
I know, I know! Probably reaching an agreement isn’t realistic, or you would already have one in place and be living happily ever after, with a custody and visitation arrangement in place and enough child support to amply provide for your children. It’s just that, as an attorney, I feel duty bound to recommend the quickest, cheapest, easiest, most desirable course of action first. That doesn’t mean it’s best for you, in your particular situation. It’s just something worth considering, and I feel that I would be remiss if I didn’t at least mention reaching an agreement in passing for your consideration. Now, moving right along…
It is not easy to represent yourself. Obviously it’s not, or else people wouldn’t spend three extra years and a hundred thousand dollars going to law school. There’s a lot that you might prefer to know before you jump right in front of a judge. As you can probably imagine, it’s a pretty scary thing—especially when you know that things as important as the custody of your children are hanging in the balance.
So, anyway, to recap: yes, you can represent yourself, but it’s not always the easiest thing in the world. Here’s a couple other things you should know about custody and visitation petitions in the juvenile court in Virginia.
1. It may take awhile.
A lot of people seem to think that they should start at the juvenile court level because it’s “easy” and “quick.” It’s not.
In fact, most courts have pretty serious dockets (you know, the number of cases waiting to be heard by the judge), and, when you file petitions, you get in line behind everyone else who has filed before you. Sometimes, the dockets get really backed up. In fact, most of the time, the docket is pretty backed up. You may get a date relatively quickly, but usually that date is just for an initial appearance, not a final hearing or trial on the issues.
If you’re expecting a quick turnaround, you’re going to be disappointed. An initial appearance is usually just an opportunity to set a trial date. It’s a pretty quick hearing (usually 10-15 minutes, or even sometimes less). A guardian ad litem (an attorney who is hired to represent the child’s interests to the court) will sometimes be appointed, but, otherwise, very little will happen—certainly no decisions will be made.
Your trial date will likely be several months later. In my initial appearance the other day, we ended up with a trial date 3 months out (which is actually fairly good). Long story short, though, you should be prepared. It will take time. Even though you’ll get a date fairly quickly, that’s not going to handle the whole thing—it’s just going to help you set a date some time in the future to address your issues.
2. You should ask for everything you want; otherwise, the court has no authority to grant it.
I met with a woman the other day who wanted to know whether she could just file on her own for child support, just to provide a little extra cushion in the mean time while her divorce was pending. I can see why she’d think of it; especially when you’re preparing to go forward with an uncontested divorce, it can seem like the road ahead is a pretty long one, especially if he’s not providing you anything in the way of support while you negotiate the perfect agreement. (In a contested divorce, on the other hand, you can quickly schedule a temporary support hearing, so the child support issue seems less pressing.)
The risk is that, if you file for child support only, your child’s father could respond by filing custody, support, and visitation petitions, which really escalates your case. You could also go back and file more petitions, but that turns your case from a simple child support case into a much, much more complicated matter.
You’ll definitely want to ask for everything, though (custody, support, AND visitation, even if you want custody and not visitation), because if you don’t, the court can’t give it to you. The risk? If you go into court and you’ve only filed custody petitions, and the court decides to give custody to dad, you can’t fall back on your visitation petitions. The judge couldn’t then grant you visitation, even if he (or she) wanted to, because you didn’t ask him (or her) to award visitation. Wouldn’t that be awful?
3. Anything that happens at the juvenile court is automatically appealable to the circuit court.
The reason why people say that juvenile court is “easy” is because anything that happens there is automatically appealable to the circuit court. Still, I definitely wouldn’t say that juvenile court is easy!
It IS good news, though, especially if you’re playing with the idea of representing yourself in your custody case. The risks are a little lower than they would otherwise be, because you’re not stuck with a crappy result if you’re unhappy. (Of course, until you note your appeal and go back to court to re-litigate, you ARE stuck, at least temporarily, with the juvenile court’s decision.) Circuit court, at least procedurally, is more complex and less user friendly than juvenile court, so it’s not a terrible idea to try to handle it on your own in juvenile court and then, if you get a less than desirable result, hire an attorney to handle your appeal for you in circuit court. More good news? You won’t be prejudiced by whatever happened in the juvenile court. The appeal is heard de novo by the circuit court, which means it’s like a brand new case—nothing from the juvenile court case comes up with it, so the judge isn’t biased by the lower court’s decision. It’s a completely fresh start.
4. Support will be ordered retroactive to the date of filing.
More good news? Even though it may take awhile to get in to court initially, child support is awarded retroactively to the date you filed your petitions. So, if it takes six months to get in to the court, the judge will tell you what child support will be, and he’ll also order that child support be paid in that amount, dating all the way back to the date you originally filed.
Even though it may take a little while to get in to court, there is a little extra added protection there. The delay doesn’t affect your ability to receive child support all through that period of time.
5. Everything is modifiable.
Unlike many other things, custody, support, and visitation are always modifiable, based on a material change in circumstances. Why? Well, the court is mostly concerned with what is in the best interests of the child. And what’s in the best interests of the child isn’t necessarily something that stays the same throughout childhood; it can be a constantly changing and evolving concept, depending on what happens along the way. If one parent gets a raise, the child’s best interests would be served by raising child support. If a parent moves away, it’s probably going to be necessary to re-work the custody and visitation arrangement. Whatever happens can result in a change in custody, visitation, and support.
It’s important to keep this in mind. It’s probably good news and bad news. Good news because it means that, if things don’t work out exactly the way you hoped they would initially, you can re-petition the court later on and possibly get things changed. It’s bad news because it means that your child’s father, if he’s difficult or argumentative, can bring you back into court again and again to re-litigate custody, visitation, and support. You’re on the hook until the child is eighteen.
Two more tips: you can always meet with an attorney, one on one, to discuss your options. You can even go back to that attorney later, without hiring him or her, just to ask your questions as they come up. A lot of people seem to think that you can’t talk to an attorney unless you actually hire them, but that’s not the case. You can meet with them, ask your questions, and just pay the hourly rate. That way, you’re not going in totally without help—but you’re not paying what it costs to hire an attorney, either.
Another thing you can do is attend Custody Bootcamp for Moms, and intense, all day seminar sponsored by my law firm. It’s designed to help teach moms what they need to know to represent themselves in custody, visitation, and support hearings at the juvenile court level. At Custody Bootcamp for Moms, we teach you:
• How to make opening and closing arguments;
• When to sit and stand and how to address the judge;
• How to question and cross examine witnesses;
• How to get your evidence in (and keep his out);
• What to wear;
• How to organize your trial notebook;
• What the ten, all-important custody factors are, how the judge applies them, and how to base your entire custody case around them;
• And so much more.
It’s really comprehensive; in fact, it’s the only seminar of its kind. (And there’s no comparable seminar for dads, either.) We teach it quarterly, on the fourth Saturday of the month in January, April, July, and October, so there’s a date coming up before your custody hearing!
The cost to attend is $197, which is less than the cost of just one hour with a moderately priced local attorney, so it’s a great, low-cost option for any woman who is planning on representing herself. Are there risks? Of course there are! But handling these petitions yourself at the juvenile court level has the potential to save you money and get you the results that you want without hiring an attorney. Only you can decide whether this is a path you’d like to pursue, though.
For more information, or to schedule a consultation with one of our licensed and experienced Virginia divorce attorneys, give our office a call at (757) 425-5200.