The worst has happened. You went to court, and a judge ordered custody to your child’s father. You lost custody. You can’t believe it. You. Lost. Custody. You want to throw up. You’re panicked and terrified. What happens next? How do you get your kids back? What should you do now, and who do you pick to help you along the way?
Well, of course, a lot depends on your case. Obviously, the judge saw something about you that was concerning. If it’s drug or alcohol use, sober up. If it’s a refusal to coparent with your child’s father, take a coparenting class. If it’s because of a recent move, consider moving back – or relocating to somewhere near where your child’s father lives. And so on, and so forth. This isn’t an exhaustive list of things that could be wrong by any stretch of the imagination, but it’s a list that will, I hope, encourage you to think of possible solutions and things you can start doing right now to improve your case for when it goes to court again in the future.
The good news? Custody and visitation cases aren’t done until the child turns 18. You can go to court again and again, over and over, to argue over custody. (That’s also the bad news.) You’ll have another bite at the apple. Now, let’s talk about different types of custody cases, and what your options are in the event that you’ve lost custody.
If you lost custody in juvenile court
If your case is a modification of custody and visitation, or even an initial determination of custody and visitation (as long as it’s not also part of an underlying divorce action), you’re probably in juvenile court.
Juvenile court is sort of the wild, wild west. We, with all our experience, often don’t kno what will happen in juvenile court cases. Judges vary dramatically, and custody is subjective. Custody determinations are made on the best interests of the child factors, which means that a judge has to consider those factors to make a determination – but that doesn’t mean that every judge will weigh the factors in the same way with the same weight, or will ultimately come to the same conclusions. They often don’t.
That can make predicting outcomes in the juvenile courts almost impossible. But there’s something else good about juvenile court – you get an automatic appeal to the circuit court de novo. After the circuit court, it’s much, much harder to appeal a ruling (more on this in a few), but in the juvenile court, it’s very easy. You note your appeal within ten days, and you can appeal to circuit court. That’s it. A new judge, and nothing from the juvenile court comes up to the circuit court with you. It’s a brand new trial. Sure, you’ll have to follow the lower court’s ruling for a little while, until you actually go to court and the circuit court judge issues a ruling, but that’s still not forever.
You should know, though, that circuit court is more complicated than juvenile court, and you should absolutely have an attorney there to represent you. This is probably especially true since things somehow went wrong at the juvenile court level; you’ll want someone there who can help correct the misrepresentations that were made, do a better job of confronting your child’s father in his lies or misinformation, and also do other important procedural things, like conduct discovery, to make sure all the evidence is in order (and it’s not a he said, she said type situation).
It may take a little while to get a court date, but at least you have the chance to appeal. Follow the juvenile court’s ruling for now, and prepare for your appeal.
If you lost custody in circuit court
If your case is in circuit court (either because it’s an appeal or because it’s part of a contested divorce), you can’t really appeal. I mean, technically, appeals are a possibility, but the Court of Appeals only hears cases on appeal from the circuit court if there was a mistake of law – and NOT a mistake of fact. In other words, it doesn’t matter whether the judge believed his lies, it only matters if, somehow, the law was applied incorrectly. Since the main law that is applied here is the best interest of the child factors, it’s kind of hard for the judge to make a mistake. Sure, it’s possible, but it’s not probable. It’s naturally subjective, so just because you disagree with it, or the judge didn’t draw the right conclusions from the information provided, doesn’t mean that there was a mistake of law. Even if he weighed one factor more heavily than another, or indicated that he wasn’t interested in a particular piece of information (that you maybe thought was your trump card), that does not mean that there was a mistake of law.
Even if you COULD appeal, it would be very expensive. This isn’t the same jump as from juvenile court to circuit court; the court of appeals is much more difficult, time consuming, and expensive. If you suspect you have an appealable issue, it’s a good idea to talk to a divorce and custody attorney about it sooner rather than later. (Remember: those same time limits still apply.)
So, if I was in circuit court when I lost custody, I’m just SOL?
Well, no, of course not. Like I said, the judge’s ruling isn’t forever in custody cases. You can keep going to court, over and over, to argue over custody, until your child turns 18.
If you get a result in the circuit court that you don’t like, or if you don’t appeal a juvenile court ruling but want to modify it later, you can petition the juvenile court again later to modify custody and visitation.
What? Did you say the juvenile court?
Yes, the juvenile court. After your circuit court case (which is concluded either when a custody order is entered, or when a final divorce decree is entered, depending on the type of case you have), any other issues related to custody, child or spousal support, and visitation, will be sent back down to the juvenile court. (So, if you re-litigate, the same procedure applies that I described above – a ruling, a possible appeal, and a new hearing de novo at the circuit court level, if you choose.)
When can I petition the juvenile court to modify custody and visitation?
As soon as there is a material change in circumstances, you can petition the court for a modification. A material change in circumstances will be pretty broadly construed, but you should keep in mind that we’re talking about a change in circumstances for the CHILD, not for you. Still, things like remarriages, moves, promotions or demotions, new siblings, new relationships, mental illness or substance abuse, etc., can all be material changes in circumstances. If you’re questioning whether something would be a material change, it’s a good time to talk to an attorney about your specific situation. But, of course, the key is that it should be something that means that custody and visitation should change to suit the changing developmental needs of the child.
Typically, the court won’t hear a petition for modification until at least 6 months (but sometimes as much as a year) has passed since the entry of the last order. You can’t just turn around and immediately file another petition for modification after your first trial concludes; some time must have elapsed.
Will I have the same judge and Guardian ad litem?
Probably. I mean, it’s possible that a judge could retire, or a substitute judge could be present on any particular day, but most courts try to keep cases with the same judge. That may be a good or a bad thing, in your opinion (but probably bad because the judge obviously ruled against you once), but the feeling there is that having the same change creates continuity and stability for the children, and also that then you and your attorney will have to spend less time giving background information to a different judge (so you can focus instead on actual issues).
Same goes with the Guardian ad litem. If you appeal, your GAL will go up to the circuit court with you. If you petition for a modification and a Guardian ad litem is needed, chances are the same GAL will be appointed, unless he or she is retired/retiring, or unavailable for some reason. But that’s probably a long shot.
You’re probably better off spending your time trying to rehabilitate your image to the judge or GAL than worrying or trying to figure out some way to prevent the case from falling back under their control. It’s almost certainly going to happen, and any effort you make to prevent this will likely only serve to further develop their bias against you. I suggest that, instead of preventing this, you work towards fixing whatever problems they’ve seen with you – no matter how unfounded you believe their accusations are.
Judges and Guardians ad litem don’t want to punish parents indefinitely; they’ll want to look at you and see change and progress. These days, so many courts are so pro shared custody that chances are probably pretty good that if you correct some of the mistakes you made the first time, show a real change in behavior, and focus on parenting, you’ll be in a much better position when you go to court again.
And having an experienced Virginia custody attorney on your side wouldn’t hurt, either. If you lost custody, it’s time to bring out the big guns. Give our office a call at 757-425-5200 to set up an appointment to talk to one of our licensed and experienced Virginia divorce and custody attorneys today.