Can I represent myself in my Virginia custody case?

Can I represent myself in my custody case?

Women ask me all the time whether they can represent themselves in their custody cases. I get it – attorneys are expensive. And probably fairly intimidating, especially if you don’t have much experience with the process.

Technically, the answer is yes. You are allowed to represent yourself in a divorce or custody case (because, of course, custody can be either a standalone case or it can be part of a larger divorce action) in the courts in the Commonwealth of Virginia. But “can” you and “should” you are two different questions, right? I think so.

Can I represent myself in my custody case?

Yes, absolutely, you can. If you want to represent yourself, no one can stop you.

Should I represent myself in my custody case?

My answer to this question has recently changed. I used to encourage women to at least get the information about how custody cases work to decide whether or not to represent themselves. I told them about our free custody book and our low cost custody seminar, Custody Bootcamp for Moms, which is designed to help Virginia moms learn what they need to learn to represent themselves in juvenile court cases for custody, visitation, and child support.

After all, our big schtick is empowerment through education. The more you learn about the divorce and custody process in Virginia and exactly what’s involved, the better choices you can make – both for your own sake, and for the sake of your children. That’s all still true, and I think that getting a copy of the custody book, the divorce book (if your case is also part of a larger divorce action), attending a divorce or custody seminar, or both, and reading our blogs, articles, and free reports can give you a wealth of information not available anywhere else save law school. Having information available to you allows you to understand and make informed choices.

Still, like I said before, my answer is changing. Even knowing the information sometimes isn’t enough, because there’s a big difference between law and procedure. Knowing the law – like, the difference between legal and physical custody, and what the difference is between shared, split, and physical custody, for example – is different than knowing how to draft and file pleadings with the court, what deadlines apply, and how to get orders entered. It’s kind of complex, and it takes practicing attorneys years to learn all of the nuances of different cases. Even still, we’re faced with challenging, complex, and new issues every single day that we have to find new solutions to fit.

It’s probably the understatement of the year to say that this is both a difficult and a stressful job. If you’re doing the job yourself – as in, representing yourself – and it’s your own kids at stake, I think the pressure might be so overwhelming that it’d be even more difficult to do a good job. It’s hard to be reasonable and rational when the issues are just too close to your own heart.

Do I recommend representing yourself in your custody case?

No. Not anymore. But maybe I’m writing to you today from a bad place. I had a consult with a woman the other day whose only concern was getting child support in place. We discussed options, hiring me versus her handling the case on her own, and she ultimately handled the case on her own. During her consultation, I reviewed her paperwork, and I gave her some practical pointers for what to say to the judge to ask for what she wanted.

There are some good things about handling cases in juvenile court on your own. For one thing, it’s just a more user friendly court system than the circuit court. For another, you get an automatic appeal if the judge orders something you don’t like. So, if you decide not to hire an attorney and it doesn’t go well, you can note an appeal and hire an attorney to represent you for the second appearance in circuit court.
But bad or frustrating things can also happen. In this particular case, it wasn’t really that something bad happened. Her husband showed up on the day of the hearing, said he had hired an attorney, and the judge continued the case. For about three more months.

For a person who has waited all this time for a hearing date (in her case, three to four months already), it’s frustrating. It’s probably also confusing. When this woman spoke to me again, she told me that she thought her husband was lying, that the judge didn’t understand, and complained, too, about having some issues with service of process. It was clear, to me, at least, that there were a lot of things about the process that SHE just didn’t understand, and it made me wonder whether it was a good idea to have discussed with her at all the possibility of representing herself.

On the one hand, I think it’s a choice women should feel empowered to make. Not only that, but the firm and I are committed to making sure that women who DO make this choice (or are considering it) have the information and tools they need to make that decision, and to know what they’re getting into. We have so many resources, both free and low cost, for this exact reason.

But, on the other hand, I worry about these women. Like, wake up in the middle of the night, worrying about these women. Procedurally, there’s a lot to understand, and my conversation with this woman showed me that, no matter how much time I had spent with her and how many questions I had answered, there was still a lot that she didn’t understand. It didn’t hurt her – honestly, I am convinced that the court would have continued the case regardless of whether I was there – but it did make her question the process, feel unheard, and generally unsatisfied. It supported her feeling that her husband would continue to get away with paying for nothing, doing nothing, and not being a father at all to her children.

Should I have recommended something different? I still don’t know, because I still believe that it’s important for women to be able to choose what works best for them. Also, it’s not really like she got a result yet, so her case ultimately hasn’t been harmed.  She just walked way feeling unsatisfied, ill used, and confused.  In general, a plain child support case is probably about as simple as it gets. Child support is determined by a formula in Virginia, so it’s not like it takes any incredible skill on the attorney’s part to get guideline child support. But there’s a lot of other things, even in the simplest case, that an attorney CAN do, that maybe a regular person isn’t that well suited to do. Service of process, for one thing, would be streamlined (and handled by a private process server, as opposed to a sheriff’s deputy), and she would at least have had someone there to argue on her behalf. Even if the continuance had still been granted (as I’m fairly certain it would have been; no judge wants to look like he didn’t give a pro se person – someone who is not represented by counsel – a chance to obtain counsel and put on a real case), she would have understood better.

Ultimately, I think we’re doing the right thing. Advocating for women to educate themselves about the divorce and custody process in Virginia, and helping them get access to that information. It’s all up to date, Virginia specific, and written by licensed and experienced custody attorneys – so you know it’s good. (You can’t say that about most information you find on the internet!) Women have to have the freedom to choose whether to represent themselves or hire an attorney to do it for them, and we have to be able to give them as much information as possible to really be able to make that decision.

Does it give me heartburn? Yes, absolutely. And to get back to my original question – SHOULD you represent yourself in your custody case? Fortunately, that’s not really a question for me to answer. Only you can answer that, based on your needs, your budget, your knowledge of the system, and your general comfortability with walking into the courtroom alone. Will your child’s father have an attorney? Maybe. Does that change the analysis? Maybe.

You have to make the decision. It’s your duty, though, to make that decision armed with as much information as possible. We’re here to help you there. You’re in the right place, you’re asking the right questions, and your children are so lucky to have a mom who loves them enough to do whatever it takes to protect them.

For more information, or to schedule a consultation with one of our licensed and experienced Virginia custody attorneys, give our office a call at 757-425-5200.

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