On Wednesday, we talked about your first custody court date – otherwise known as your initial appearance – in juvenile court. You know, that first date in, where you presented the details to the judge and set a trial date.
It’s a common misconception that the first custody court date is going to be the custody trial date, and that just isn’t so. It’s just the opportunity for the parties to come and explain the issues to the judge (not to really present evidence, just to lay it all out there for the judge to begin to understand), and then to set the matter for a trial. At that point, the judge can do a couple of things – like appoint a guardian ad litem, order that the parties attend parenting education, and order mediation. In fact, those types of things often happen, so don’t think that any of them are a bad sign (I’m a big one into reading too much into things that happen to me and finding that this thing or that thing might in fact be a very bad sign – don’t fall into that trap, too!) for your case overall. It’s not. It’s just a sign that the judge is taking his job seriously, and wants you to take your role in the proceedings seriously, too. It’s respectable.
Your first custody court date just sets a trial date.
But your second custody court date is likely the trial date. The trial date is the time that you’ll need to bring in all your evidence, your witnesses, your exhibits, and also be prepared to offer your own testimony. It’s the time that everything should come out, because it’s the time that you can expect the judge to render his opinion.
…But what if you don’t like the judge’s decision?
What if the judge made the wrong decision, for one reason or another? Though I don’t suggest that you say that to the judge’s face, it does sometimes happen. The good news is that, at the juvenile court level, at least, there’s a silver lining.
If you get a bad result at the juvenile court level, you can appeal to the circuit court and get a trial de novo (that’s Latin, for a brand new trial). Nothing from the juvenile court trial will spill over to the circuit court trial; it’s completely brand new, and untainted by anything that happened at the lower court level.
Sure, there’s added expense. If you were unrepresented by an attorney at the juvenile court level, I’d certainly recommend that at the circuit court level you hire an attorney to represent your case, if for no other reason than to correct the errors from the lower court. Additionally, though, the circuit court is nowhere near as user friendly as the juvenile court, so you’d probably also find that it’s just not as feasible to represent yourself in circuit court as it used to be in juvenile court. A lawyer is definitely advisable.
There’s also added time. It may take a little while to get a court date in circuit court. That’s going to be a problem in almost any court; the dockets are pretty backed up, and getting a court date is almost never an immediate thing. In the meantime, you’ll be bound by the decision of the lower court, too – so, while you’re waiting for your next court date, you’ll have to do what the juvenile court judge ordered. I know, probably not ideal, but…it’s only temporary.
What happens if I don’t like my result in circuit court?
Well, it’s not as easy to appeal after circuit court. If you wind up with a result you don’t care for in circuit court, it might be worthwhile to sit down and have an honest heart to heart with your attorney about the strong and weak points of your case, and whether it’s really worth pursuing at this point in time.
You can pursue past the circuit court level on appeal; you can appeal to the Virginia Court of Appeals, but it’s no longer a trial de novo. In fact, you can only get an appeal if there was an error of law (not a mistake of fact) made in your case. Those are relatively hard to find; you’ll likely want to speak with your attorney about whether a mistake of law might have been made in your case.
Generally speaking, mistakes of law are harder to find in custody cases than in other cases, because so much of it is subjective. It’s based on the best interests of the child factors, and ultimately a judge makes the best decision he can with the information he has. It’s hard to overturn him on appeal based on his review of the factors. Since there’s not a whole new trial (the witness, etc., won’t come in and testify again, the appeals court would just review the written record of the case, including the transcript generated by the court reporter), it’s not like you’re going to get new evidence in or garner more sympathy. In fact, this is a decidedly difficult way to win a case. And, again, you have to have that mistake of law to get there at all. Besides all that, it’s expensive.
So, if I get a terrible decision in my custody case, what should I do?
The good news is that custody, visitation, and child support are always modifiable anyways based on a material change in circumstances – so, really, there wouldn’t be much need to even discuss an appeal to the Court of Appeals. (Probably, it’d take as long as it would take to have a material change in circumstances anyway, and it’d certainly cost far, far more!)
Mostly, courts won’t hear petitions for modification unless at least 6 months (but generally more like 1 year) has lapsed since the last time the court heard the issue. Material changes in circumstances are construed broadly (remember, we’re talking about what’s in the best interests of the child here, so we’ve mostly just got to make an argument that it’s in the child’s best interests that we look at the situation again out of fairness to the child), but usually something like a new job, move, remarriage, new baby, the child going to school, or something like that will help get us in the door.
If you got a bad decision one time, you just have to wait until there’s a material change, and petition again. There’s no guarantee your result will be what you want this time, either, of course, but at least it’s one more time in the court, and one more opportunity to ask for what you want.
Custody cases are tricky, but the more you know, the better you can prepare! For more information, request a copy of our custody book, get more information about our custody seminar for Virginia moms, or schedule an appointment with one of our licensed and experienced Virginia custody attorneys by calling our office at 757 425-5200.