What to expect in your Virginia custody case

Posted on Apr 27, 2016 by Katie Carter

There’s no such thing as a one size fits all custody case, so it’s often difficult to give an answer when a woman asks me what she can expect in an upcoming custody case. Still, I know how frustrating it can be when you ask a lawyer a question and the answer you get is “it depends.” Even though the answer often does depend on a lot of different factors, “it depends” isn’t enough to help you figure out what you’re up against.
I do always try to give answers, even when they’re fairly complicated and, like it or not, depend on a lot of different factors.
Custody cases are complicated, and they can come in all different shapes and sizes. A custody case can, for example, be part of a larger divorce or custody action, so custody can be something that is negotiated in a separation agreement or litigated in court. Custody can come about when mom and dad were never married, or even after they’ve been divorced or separated for awhile. Custody cases can be negotiated and settled out of court, or they can be fully litigated. They can present specific issues, like relocation or physical or sexual abuse. In some cases, CPS can be involved, or a parent can be petitioning to get custody back after having it taken away due to a drug or alcohol conviction. Parental rights can be terminated, in extreme cases, too. Sometimes, grandparents or other nonparents (aunts or uncles or stepparents) petition for custodial rights, too.
Compared to divorce cases, custody cases can take a lot more forms depending on the circumstances. Your likelihood of “winning” custody depends on the type of case you’re facing and the specific facts at hand. In a divorce case, the court is more concerned with dividing property “equitably” (which, loosely translated, means something like “fairly”) between the parties. In a custody case, on the other hand, decisions are made without respect to whether a particular decision is fair to both parties. Instead, the court (and the Guardian ad litem and custody evaluator, if one is involved in your case) makes decisions based on what is in the best interests of the child.
Custody cases are hard to predict, and can take a lot of forms, which is why it’s often hard to answer when someone asks what to expect. Still, I’ll do my best. Read on, and we’ll talk about different types of cases, your likelihood of success, and how much you can expect to pay to retain an attorney to represent you in your case.

Custody and Divorce Cases

Custody comes up pretty often as part of an underlying divorce case. Divorce cases really only take a couple of forms—they’re either handled with a signed separation agreement, negotiated between the two parties, or litigated in court.

Custody in a separation agreement case

In a separation agreement case, custody is negotiated between the parties, so it’s a pretty easy matter. That’s not to say that it’s easy to decide how custody and visitation will be shared; when I say easy, I just mean to compare the negotiation process to other ways of disputing custody. These cases are usually considered some of the most successful—a result is negotiated between the two parties to their mutual satisfaction, so they both feel, at the end of the process, that their feelings were taken into account. That’s not to say, of course, that it’s a perfect result, but it’s generally easier, more effective, and less expensive than a litigated custody case.

Custody in a litigated divorce

In a litigated divorce, custody is decided by the judge after each party has an opportunity to present their case. These cases are more adversarial, pitting the parties against each other, and tend to take longer, cost more, and yield less predictable results.
The judge will be trying to make a decision based on the best interests of the child and, recently, we’ve seen more and more judges awarding something like shared custody in litigated divorce case.
“Winning” isn’t really so much of a thing in custody cases that are in front of a judge. It’s not like the judge is going to take custody away from a good parent just because someone has to “win” and someone has to “lose.” For this reason, we see lots of shared custody—custodial arrangements where the non-custodial parent has more than 90 days with the child in a calendar year. In this situation, whether you’ve won or lost is often a matter of perspective; though you may have little input in the way custody is ultimately handled, neither one of you will be left with no access to the child (unless, of course, there are some extenuating circumstances).
To totally lose custody, you would need to have something pretty dramatic happen. A finding by CPS for sexual abuse, for example, could very likely result in one parent being denied custody, or awarded supervised visitation only. In most normal cases, though, the parents wind up splitting custody in some way.
It’s hard to isolate the costs as they relate to custody in these types of cases, but a contested divorce retainer often runs between $5,000 and $7,500. Total costs will likely be more, but it depends on the complexity of your situation and the specific facts involved.

Custody cases

For custody cases that are NOT part of an underlying divorce case, there are a lot of different ways your case can move forward.

Initial determination

An initial determination of custody happens the first time you go to court on custody, visitation, and support petitions.
An initial determination can be made through mediation, by agreement of the parties, or through litigation. It really all depends!
Often, when you go to juvenile court for the first time, the judge will require that you and your husband attempt mediation before you have a full on custody trial. If you can reach an agreement, either on your own or with the help of a mediator, you’ll often have a much better result (because, of course, participating in the decision about what’s going to happen to your children is pretty important) and spend considerably less money.
If you can’t reach an agreement, you may have to litigate your entire custody case—which, again, is more likely than not to result in some kind of shared custody arrangement.
Costs are considerably less when you negotiate or mediate rather than litigate; that’s a pretty universal truth. Often, though, it’s difficult to know whether you and your child’s father will be able to reach an agreement, so you might get a retainer that includes the possibility of litigation, even if your case winds up settling. These types of cases often see retainers in the range of $3,000-5,000, depending on the factors and the level of complexity involved in the case.
Of course, keep in mind that whatever retainer funds may be left over would be refundable to you so, even if you hire an attorney and pay $4,000, if you negotiate an agreement early on, you’ll get a sizable refund. If, on the other hand, you litigate all the way through, it’s possible that your initial retainer won’t cover the total costs, and you’ll have to supplement your account as the case goes on. (Retainer fees, after all, aren’t flat fees; they’re just deposits required up front in order to take your case. Your total costs can be less, in which case they are refundable, or more, in which case you’d have to add more money to your account.)


Modification cases happen when you already have an initial determination made respecting custody. Since custody decisions are made with the best interests of the child in mind, they are always modifiable. (Think about it: if they were set in stone, would that serve a child’s best interests? No! Because what is in a child’s best interest is constantly changing and evolving as the child grows and develops.)
If you go to court to modify custody, visitation, or support, it’s fairly likely that you’ll have a smaller retainer (unless, of course, your modification is based on one of the extenuating circumstances we’ll cover in the next section). It’s pretty common that custody decisions will be revisited as the child grows and more, different things become appropriate.
Often times, the retainer for a simple modification is relatively low—between $1,500 and $4,000, again, depending on the complexity of the case. A lot of times, these cases are just because the parents recognize that the child’s age and maturity makes something appropriate which wasn’t before. For example, overnights with the non custodial parent, or even extended vacations with both parents. Child support can also need to be raised or lowered, depending on the parent’s changing economic circumstances.

When there are extenuating circumstances – drugs, alcohol, abuse

There can be extenuating circumstances that apply regardless of the type of custody case—whether part of a larger divorce, as an initial determination, or even as a modification—that can cause the costs to be higher and the likelihood of success to be different.
In these types of cases, where there’s a drug or alcohol conviction, or physical, emotional, or sexual abuse, you’ll want to talk to an attorney right away. These cases present a number of different difficulties, so you want to make sure that you’re as prepared as possible to handle them. Lodging a complaint with CPS or making allegations to police, a guardian ad litem, or a custody evaluator can escalate your case quickly, and you really shouldn’t make any big moves like this without talking to a qualified attorney about your case first.
These cases, as you can imagine, carry heavier retainers, and have varying levels of success, depending on the specific merits of each case. You should definitely talk to an attorney, sooner rather than later, to make sure that you’re prepared for whatever may be involved in your case.
Custody cases are definitely wide ranging, so you may want to get more advice before you make a decision about how to proceed. For more information or to schedule a consultation with one of our licensed and experienced Virginia divorce and custody attorneys, give our office a call at (757) 425-5200.