How to win your Virginia custody case

Posted on Sep 21, 2015 by Katie Carter

Worried about how to win your custody case? You’re not alone. Facing a custody case is one of those things that strikes fear into even the calmest momma’s heart. I get it; it’s a big deal, and it’s really scary to imagine that so much of your future is wrapped up in what a judge thinks of you when you stand in front of him in the courtroom.
Custody cases, like divorces, generally take one of two forms: they’re either contested or they’re uncontested. An uncontested custody case means that you were able to reach an agreement, and your case didn’t have to go before a judge to be decided. In uncontested cases, mom and dad are able to reach a decision about how custody and visitation will be handled. In a contested case, on the other hand, mom and dad are NOT able to reach an agreement about how custody and visitation will be handled, so a judge has to step in to make the decision.
Most people are afraid that their case will be contested at the beginning. If you’re just involved in the early stages, try not to panic too much. (I know, it’s hard.) When parents break up, tensions are running high. You want your child’s father to stay involved, but you also want him to not step on your toes and get in the way of you being able to do things the way you feel they should be done. And imagining a Christmas (or other major holiday) without your kids! Talk about heart wrenching. Still, (seemingly) against all odds, most custody cases settle down. Most parents are eventually able to reach a decision about how custody and visitation should be handled, if for no other reason than that they want to save the money (rather than paying attorneys to go to court for them), make the decision themselves (rather than have a judge do it for them), and keep it all focused on their kids.
Of course, not everyone is able to reach an agreement. But you know that already, and that’s what you’re afraid of, isn’t it? Otherwise you wouldn’t be here.
I can’t guarantee that you’ll win your custody case, but I can help give you some tools so that when you walk into the courtroom (if you walk into the courtroom), you can do so with your head held high and present a good case—whether on your own behalf or with the help of an attorney.
So, what should you know if you want to do everything in your power to make sure you win your custody case? Read on, my friend.

1. Know how courts make their decisions.

The judge isn’t just randomly deciding who is the better parent. They have criteria that they use to help guide them as they make decisions. In Virginia, and, in fact, in most other states in the country, decisions are made based on what is in the best interests of the child. Though the specific factors that relate to a child’s best interest vary from state to state, in Virginia we have ten factors that the judge considers as far as it relates to the child’s best interests.
• The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;
• The age and physical and mental condition of each parent;
• The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;
• The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;
• The role that each parent has played and will play in the future, in the upbringing and care of the child;
• The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;
• The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;
• The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;
• Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and
• Such other factors as the court deems necessary and proper to the determination.
These factors are critically important; in fact, they should help you as you begin to prepare your case. No Virginia custody case is complete without considering each and every single one of these factors, and how they relate to your ability to parent your child.

2. Know what you’re asking the court to do (and file the petitions that allow it to do it).

A lot of custody has to do with vocabulary. Plenty of moms come in and tell me they want “sole,” custody, plain and simple, but what they don’t realize is that this isn’t really possible (and suggests to me that they really don’t know what they’re asking for).
“Sole” custody isn’t a thing, unless parental rights are terminated. And it’s really seriously unlikely that a parent’s parental rights will be terminated. Even in cases we’ve had where there has been sexual and physical abuse, parental rights stayed in tact. Why? Well, a big part of the reason is because the state does not want to let a parent off the hook for child support. While a parent has parental rights still in tact, he also has a responsibility to pay child support. Without that legal responsibility, there is no obligation and if the child’s other parent can’t make it work on her own, the state has to step in. The state doesn’t want to do that, and is unlikely to let a parent off the hook legally, as far as child support is concerned, regardless of whether they don’t visit the child or even consistently pay child support.
When we talk about custody, we’re talking about two things: legal custody, and physical custody. Legal custody, which is either awarded solely or jointly (and, just FYI, it’s almost always awarded jointly) ONLY refers to the right to make 3 types of decisions on behalf of the child: (1) non emergency medical care, (2) education, and (3) religious upbringing.
Physical custody, on the other hand, refers to where the child spends the majority of his or her time, and can be awarded primarily to one parent, shared between both parents, and split. Primary physical custody means that the non custodial parent (the parent who has the child less) has 89 or fewer days with the child in a year. Shared physical custody means that the non custodial parent has 90 or more days with the child in a year. Split physical custody means that the parents divide the children between them; usually, one takes one child and the other takes the second. (That’s only done by agreement; not ordered by the judge.)
If you’re petitioning for custody, you should know what you’re asking for. In most cases, you’re asking for joint legal custody (because sole legal custody almost never happens) and primary physical custody. You’ll want to use those words.
Not only that, but you’ll want to make sure you file petitions for all the things you may even consider asking the judge for. In a custody case, it’s usually custody, visitation, and support.

You may be wondering, “why on earth would I ask for visitation? I don’t want visitation! I want custody!”

It’s a fair question. You ask for visitation because the judge only has authority to grant things that have been formally asked of the court. If, for some reason, you lose on your argument for custody, you’ll want to be able to follow back up with a request for visitation. If you don’t ask for it, you can’t get it—and then a bad situation is even worse.

3. Don’t forget the GAL.

It’s easy to hate the guardian ad litem. The guardian ad litem (or GAL, as we normally call them) is an attorney appointed to represent the interests of the child(ren) to the court. Usually, the GAL will interview the kids and conduct home visits before, ultimately, making a recommendation to the court about how custody and visitation will be handled.
It is the GAL’s job to judge you. It is the GAL’s job to figure out what’s going on, and get to the root of the issues. The GAL will probably ask you questions about your child’s father that tempt you to give scathing answers. Don’t fall for it.
Remember that the GAL is a very important person. In most cases, judges rely very heavily on the report from the GAL. You definitely don’t want to alienate your GAL or give them ammunition to use against you in court. As tempting as it may be to give a full and complete answer to the GAL regarding your feelings for your child’s father, don’t do it. Be very careful about what you say, remembering that the GAL is not there to advocate for you. You won’t be able to “befriend” the GAL, but you will have an opportunity to make a good impression. Use it to your advantage. Let her find out the bad things about your child’s father on her own. Leopards always show their spots, in the end.

4. Build a good case, using evidence that matters to the court.

Your case should be built around the ten best interests of the child factors we discussed earlier, but you should also focus your energy on other details that make a great custody case. Talk about the schools your children will attend, the activities they’re involved in, whether they’re talking to a counselor to help ease the stress of transition, and more. Give the judge details that show your kids to be happy, healthy, and well adjusted.
Discuss where you live. Show the court pictures of your home, and nearby parks or schools. Show where your kids like to play, whether that’s the beach or a local botanical garden or a museum.
Talk about the family and friends you live near, and how you can help support the child’s relationship with other important people in his life, including his dad.

5. Don’t undermine your case by eye rolling, tooth sucking, uncontrollable sobbing, or other inappropriate courtroom behavior.

This one seems obvious, but I’m still surprised sometimes when I see how people behave in court. I know, I know. It’s an intense and incredibly emotional experience. Things happen. It’s frustrating when he charms the judge and doesn’t show his true colors. It’s difficult to sit still and not react when he lies or exaggerates to prove his own point.
Behave. No matter what he says, mind your manners. Remember that, even when the judge isn’t sitting on the bench, people are watching you. The clerks and the deputies are friends with the judge, and will talk to him in chambers before and after your hearing. Don’t give them anything to say.
Wear your church clothes, and be on your church behavior. Judges approach these cases unemotionally (they have to), so it makes them uncomfortable to see excessive emotion from you. A couple tears are fine and understandable; uncontrollable sobbing is uncomfortable for everyone involved. It won’t make your situation better; in fact, it may make you appear emotionally unbalanced.
You should be calm and poised, no matter what you feel like on the inside. You can clarify your husband’s misrepresentations when it’s your turn to talk. Interrupting will only make you appear impudent and foolhardy. Take a deep breath, and wait your turn.

6. Go to Custody Bootcamp for Moms.

Whether you’re preparing to handle your custody case on your own or you’ve already hired an attorney, consider attending Custody Bootcamp for Moms. Taught by Kristen Hofheimer and Caitlin Walters, it’s an intense, all day seminar designed to help teach moms what the courts are looking for when it comes to custody cases in Virginia. At the seminar, Kristen covers the ten best interests of the child factors (in detail), how to organize a trial notebook, how to make killer opening and closing arguments, how to question and cross examine witnesses, how to get your evidence in (and keep his out!), what to wear to court, how to address the judge, and so much more. It’s a great way to become familiar with custody law and how the courts in Virginia work. For more information, visit our website here.
Winning custody isn’t easy, but if you go in to your case prepared and armed with the right information (and, preferably, a kick butt attorney), you’ll be in the best position possible. 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.