In every child custody case in the Virginia Juvenile & Domestic Relations District Courts, the case begins with the filing of a Petition for custody. If there has been a previous order awarding custody or visitation between the parties to the new case, the filing of a Motion to Amend custody is sometimes used, but this depends on the city or county’s practice in which the case is to be filed. If the person seeking custody was not a party to the original custody order which is to be changed (ie. 3rd party such as a grandparent), then a Petition for custody must be filed. A Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) Affidavit for each child must also be filed (see Virginia Code § 20-146.1). After the filing of 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 in an attempt to resolve the issues in the case (see Virginia Code § 20-124.2 and Virginia Code § 20-124.4). If the parties reach a resolution 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 judge will typically take three actions at the parties’ initial hearing. First, they will order the parties to attend a parent education class. This class is offered by numerous organizations and consists of a video that must be watched. 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 for the betterment of 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 the ordering of home studies. Home studies are reports performed by the Virginia Department of Social Services (DSS), although there are also private agencies that 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 happen depending on the jurisdiction in which the case is filed, and depending on the location of the parties. For example, if one of the parties involved in the case lives outside of Virginia, a home study is rarely ordered. This is due to the fact that a court in Virginia cannot order the department of social services of another state to take an action absent an interstate compact. A home study report may also not be ordered if there are no issues regarding the homes in which the parties live. This is seen most often when the parties were 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 the case was filed, and who has completed additional requirements in order to serve in this role (see Virginia Code § 16.1-266.1). The guardian ad litem‘s legal mandate represents the best interests of the child. Practically speaking, the guardian ad litem performs an investigation and makes a written and/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 in support of their position.
Once the initial hearing is completed, the case is set for trial. 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 to make any revisions to their recommendation based on the evidence of the parties. After this is all considered, the judge must determine numerous items in order to award custody or visitation. In cases involving the filing a Motion to Amend, the court must determine: 1.) that there has been a previous order awarding custody or visitation and what the previous order states, 2.) that there has been a material change in circumstances since the entry of that order, 3.) that the change that has occurred relates to the proposed change in custody, and 4.) that it is in the child’s best interest for the change to occur. Additionally, to determine what is in 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 physical needs of the child, 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 pursuant to the factors. Then the judge will make their decision and the case is concluded.
Are you facing a child custody case in the Hampton Roads or Eastern Shore areas of Virginia? 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.