Understanding Child Custody in Virginia
If there has been a previous order awarding custody or visitation between the parties to the new case, filing a Motion to Amend custody is sometimes used, but this depends on the city or county's practice in which the case is to file.
If the person seeking custody was not a party to the original custody order, which is to be changed (i.e., 3rd party such as a grandparent), then a Petition for custody must be filed.
In addition, a Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) Affidavit for each child must also be filed (see Virginia Code § 20-146.1).
After filing the Petition or Motion to Amend, an initial court date is set. In between the filing and the initial appearance, the parties are ordered to attend mandatory mediation to resolve the issues in the case (see Virginia Code § 20-124.2 and Virginia Code § 20-124.4). If the parties resolve in mediation, their agreement is incorporated into a court order at the initial return date.
If not, the case proceeds to the initial hearing on the issues present.
The Initial Hearing for Child Custody in Virginia
The judge will typically take three actions at the parties' initial hearing:
- First, they will order the parties to attend a parent education class. Numerous organizations offer this class and consist of a video that the courts must watch—the video deals with the impact of disagreements on children. The class also discusses the importance of making joint parenting decisions and encourages the parties to solve their disputes to better the children involved. The certificate of completion from this course must be filed or presented to the judge at the trial date, or it can result in the delinquent party having their case dismissed.
- The second action taken at the initial court hearing is ordering home studies. Home studies are reports performed by the Virginia Department of Social Services (DSS), although private agencies can perform them for an additional fee. These reports take into account the socio-economic makeup of the home the living conditions present and contain background information on the people living in the home. They also contain a recommendation for custody based on the parties' ability to care for the child.
- This step may or may not depend on the jurisdiction in which the case files and the parties' location. For example, if one of the parties involved lives outside of Virginia, a home study is rarely ordered. This is because a court in Virginia cannot order another state's department of social services to take action to absent an interstate compact. A home study report may also not be ordered if there are no issues regarding the parties' homes. This is often seen when the parties are previously married or living together.
- The final step taken at the initial hearing is the appointment of a guardian ad litem for the child or children (see Virginia Code § 16.1-266). A guardian ad litem is an attorney practicing in the court in which a guardian filed the case and has completed additional requirements to serve in this role (see Virginia Code § 16.1-266.1). The guardian ad litem's legal mandate represents the child's best interests. Practically speaking, the guardian ad litem performs an investigation and makes a written or oral report to the judge recommending what custody or visitation arrangement they feel is in the child's best interest and why they have come to that conclusion. The guardian ad litem can also call witnesses and introduce evidence supporting their position.
Virginia Child Custody Trial
Once the initial hearing is complete, the trial case is set. At the trial of the case, the judge will review the parenting certificates, the home study reports, and the report of the guardian ad litem. The court will also allow each party to call witnesses and present evidence. Lastly, the court will allow the guardian ad litem to present their evidence and make any revisions to their recommendation based on the parties' evidence. After this is all considered, the judge must determine numerous items to award custody or visitation. In cases involving the filing a Motion to Amend, the court must determine:
- ) There has been a previous order awarding custody or visitation and what the previous order states.
- ) That there has been a material change in circumstances since the entry of that order.
- ) That the change that has occurred relates to the proposed change in custody.
- ) That it is in the child's best interest for the change to occur.
Additionally, to determine the child's best interest, the court applies the facts in evidence to the factors contained in Virginia Code § 20-124.3. Those factors include the age of the parties and the child, the ability to meet the child's physical needs, the relationship as it exists between the parent and the child, and the ability to resolve disputes regarding the child. If the case is an initial Petition for custody, the judge only has to determine what is in the child's best interest according to the factors. Then the judge will make their decision, and the case concludes.
Are you facing a Virginia child custody case in Hampton Roads or Eastern Shore? Bush and Taylor P.C. can help represent your best interests. We have offices in Suffolk, Virginia Beach, and Cape Charles. Call us today at (757) 926-0078 or use the contact form to the right.