Options in your Virginia Custody Case
On Monday, we talked about your options if you’re planning on handling your divorce case without hiring an attorney. In Virginia, like I said the other day, you’re welcome to represent yourself in the court without an attorney—there aren’t any rules against it. Of course, depending on what type of case you’re facing, it may be more or less likely that you can successfully represent yourself. The court system isn’t always particularly friendly to pro se litigants (people who represent themselves without an attorney). It’s not intentional, really, it’s just that there are all sorts of procedural requirements and legal precedents that most normal people just don’t know, so sometimes people find that there are unexpected roadblocks when they try to take their case to the courts on their own.
Because we know that there are women in all sorts of different places facing all sorts of different cases, we’ve done a lot of work trying to make sure that we provide information for women at every level and at every place in the process. If you’re planning on representing yourself, for whatever reason, we have worked hard to make sure that we are providing timely, useful, Virginia-specific resources for you.
If you’re facing a divorce case, you should definitely consider attending our monthly divorce seminar, Second Saturday: What Every Virginia Woman Should Know About Divorce. We offer it three times a month, twice on the Second Saturday of each month (once each in both Virginia Beach and Newport News) and also on the third Tuesday of the month (in Virginia Beach only). It’s a great way to get all the legal information you need to make decisions both in the here and now about how to get started, and also to start preparing for what the future will probably bring.
If you, on the other hand, are facing a custody case, you’ve come to the right place. As you can probably imagine, custody cases are a little bit different than divorce cases. (If you’re facing a divorce, but custody is one of the issues, you’ll want to read Monday’s post about divorce cases.) Custody cases, when they’re separate from a divorce, can happen all sorts of different ways. Maybe you’re already divorced from your child’s father. Maybe you never married. Maybe you’re still married, but not ready to get a divorce just yet.
A divorce action takes place in the circuit court. Custody cases, on the other hand, start in the juvenile and domestic relations court, which is good news, because the juvenile and domestic relations court is generally more user friendly.
So, what are my options if I want to represent myself in my upcoming custody case?
There really aren’t a TON of resources out there for moms who want to represent themselves in custody cases, but a great place to start is by requesting a free copy of our book, “The Women’s Custody Survival Guide.”
Written by Kristen Hofheimer, “The Women’s Custody Survival Guide” is a book for moms with unanswered questions about custody cases and custody law in Virginia. No matter where you are in the process, “The Women’s Custody Survival Guide” will help teach you about how the law applies to custody cases in Virginia. It explains the different types of custody, including the differences between sole and joint legal custody, as well as primary, shared, or split physical custody. It even addresses special issues in custody cases, including what happens in custody cases where mom is still breastfeeding, where the children are being homeschooled, where physical, emotional, or sexual abuse is an issue, how to handle a possible relocation (and if that’s even possible), what to do in cases where the children have special needs, and also same sex relationships. The book talks about how courts look at and typically decide custody cases (and the ten all important factors that the judge has to consider in making custody decisions), how mediation and collaboration can help (or hurt) your case, and what to expect when (and if) your case ends up in court.
“The Women’s Custody Survival Guide” is incredibly informative, and was written by Kristen Hofheimer, the senior partner of the law firm, who has tons of experience in dealing with custody and visitation cases in Virginia. It’s packed full of valuable information, and it’s a great place to start if you’re facing (or think you may be facing) a custody case.
After you’ve had a chance to read the book, you’ll probably want more information about what your next steps should be. You can always schedule a consultation with an attorney, which is a great option—you’ll get specific, tailored, information about how to move your unique case forward. You’ll get guidance from your attorney about your specific circumstances, and you’ll get tons of information about the things you should and shouldn’t be doing. It’s so important not to make any mistakes, especially if you’ve got guardians ad litem, custody evaluators, and judges involved.
If you can’t afford an attorney, or just prefer to handle things on your own, what are your options?
The absolute only seminar of its kind anywhere, Custody Bootcamp for Moms is a seminar designed and taught by Virginia divorce and custody attorney Kristen Hofheimer for Virginia moms facing custody cases. Specifically, it’s designed to help moms facing custody, visitation, and support cases at the juvenile court level.
Custody Bootcamp for Moms isn’t just a normal seminar—it’s an all day, super intense workshop, and it’s goal is to help teach the women who attend exactly what they need to know to walk tall into the courtroom on the day of their custody case and effectively represent themselves in front of a judge. Nowhere else can you learn, directly from an attorney, exactly what you need to know to litigate your own case.
At Custody Bootcamp for Moms, you’ll learn all about the ten critical custody factors (including how they should be applied in your case), how to work with custody evaluators and guardians ad litem, how to question and cross examine witnesses, prepare your trial notebook, when to sit, stand, and how to address the judge, what to wear, how to give a killer opening and closing argument, how to get your evidence in (and keep his out), and more, including lots of trial tested tips and techniques from a custody attorney who really has been there.
There’s no other seminar of its kind anywhere else, and certainly no other such seminar for dads! For more information about Custody Bootcamp for Moms, or to get a copy of our free report, “Can I REALLY represent myself in a custody case?” click here.
In some cases, mediation is also a great option, especially if you and your child’s father are on relatively good terms. You don’t have to be BFF, but as long as you’re both able to stay reasonable and rational when you’re talking to each other (even if this is a discussion that tends to be more difficult for you to have), it’s definitely possible that you can use mediation to negotiate a result that is acceptable to both of you.
Mediation generally is NOT appropriate in cases where there’s an uneven balance of power—specifically, in relationships where there has been some physical or emotional abuse. The last thing you want is to be put in a position where he can strong arm you into getting exactly what he wants and, for some people, mediation doesn’t provide enough separation that allows them to really speak to what they need. Since the mediator is not on any one person’s side (but really is only there to help make sure you can reach an agreement—any agreement), it can be hard for the less assertive parent to be heard.
Just like when divorcing women contemplate using mediation, I advise them to speak with an attorney both before and after mediation. Beforehand, you can get valuable advice about what the court might do in your situation, if worst came to worst and you ended up asking a judge to decide. That can be incredibly helpful, because it gives you a range of suitable arrangements to consider before the mediator comes in and tries to encourage you to reach an agreement. After all, how do you know what’s a good (or acceptable) agreement, if you don’t know what the judge might do? Don’t you also need to know what the law says? It’s so helpful to go in with an idea of what you might like to receive.
Similarly, afterwards it’s helpful to take your potential agreement back to the attorney to review, just to make sure everything checks out. You never want to sign anything without being sure that you’ve read and understand everything that’s in your agreement, especially when it relates to something as important as the custody and visitation arrangement that will govern the way your children are brought up.
An attorney can also give you valuable guidance about which mediator to use because, like attorneys, some mediators are better than others. In general, mediation is a reasonable alternative that can save you time and money, but you have to know what to expect going in.
What happens if my custody case doesn’t go as well as I hoped?
The good news about custody cases is that, if you don’t get the result you wanted, you may not be stuck with it.
If your petition is in the juvenile and domestic relations court
If you’ve filed a custody, visitation, or support petition in the juvenile and domestic relations court and the case was decided against you, you can appeal the decision to the circuit court. You’ll have to note your appeal within 10 days. That doesn’t give you a lot of time to decide, so you’ll have to be prepared for the time limit and move quickly.
The circuit court isn’t quite as user friendly as the juvenile court, so you may want to retain an attorney to help you with your appeal. The good news is that your appeal will be held “de novo,” which means that it will be like the earlier hearing at the juvenile court level doesn’t exist. You’ll be able to present your evidence, call your witnesses, and give your opening and closing statements all without anything that happened at the lower court messing with the new hearing. The bad news, though, is that you’ll have to abide by whatever the juvenile court ordered until a new circuit court order is entered and supersedes it.
Material change in circumstances
If you either (1) don’t note an appeal after the juvenile court order is entered, (2) reach an agreement but change your mind later on, or (3) are disappointed in the circuit court’s order later on, you’re still not stuck.
Because courts are concerned with determining what is “in the best interests of the child,” nothing is too terribly permanent about custody and visitation arrangements. The court will review, and re-review them, over and over until the child turns 18.
Of course, you can’t just petition the court over and over again until you get the result that you want. You have to show that there has been a “material change in circumstances” that means that the court needs to re-open the case because it’s not in the best interests of the child for custody or visitation to continue on the way it was previously ordered.
A material change in circumstances can be almost anything—a job change, a promotion, moving, whatever—that affects the best interests of the child. If you can demonstrate that there has been a material change in circumstances your case can be re-heard, and the judge can reconsider your currently ordered custody, visitation, or support.
Custody cases are unique, but you should now feel armed with the right information to help yourself make the best choice for you under the circumstances. For more help, give our office a call at (757) 785-9761, and we can help you figure out the best option for your upcoming custody case. Good luck!