What will the custody process look like?
Most of the time, after one or both parents file for custody in court, the parents (possibly with their attorneys) will come to some sort of agreement about child custody. If they can agree, the judge will review that agreement and, under most circumstances, turn it into a formal court order.
Sometimes, parents cannot come to an agreement. In that case, a judge might order the parents into mediation, where a mediator tries to get you and the other parent to come to an agreement.1 If you are afraid of the other parent, or there is a history of family abuse, be sure to tell this to the judge since mediation may likely not be appropriate. For more information, see What is mediation and who pays for it?
A judge may also order that the parents attend a seminar or program that addresses the effects of separation or divorce on children, parenting responsibilities, options for conflict resolution and financial responsibilities. The fee charged for participation in such program cannot be more than $50 but the exact amount charged will be based on the parent’s ability to pay.2
If the parents still cannot agree, or the judge does not order mediation, then there is a trial where both parents can present evidence and witnesses to strengthen their case. There may be one hearing date or a series of hearings. At the end of the trial, the judge will decide who will get custody and what other terms will go into the custody order. If you think that your case is headed for trial, we strongly suggest that you get a lawyer to represent you. Custody cases can be complicated and it is often best to have someone in court by your side, who can help you through the process. See our VA Finding a Lawyer page for more information on how to find a lawyer in Virginia.
1 Va. Code § 20-124.4
2 Va. Code §§ 16.1-278.15(A); 20-103(A)
How will a judge make a decision about custody?
A judge will make a decision about custody based on what s/he thinks is in your child’s best interest.1 The judge will look at any factor that s/he thinks is important in making this decision. Some of the things a judge will look at include:
- the age and physical and mental condition of the child;
- the age and physical and mental condition of each parent;
- the relationship existing between each parent and each child, and the ability of each parent to meet the emotional and physical needs of the child;
- the needs of the child, including other important relationships in the child’s life such as siblings, friends and other family relatives;
- the role that each parent has played in the child’s life, and the role each parent will play in the future;
- the likelihood that a parent will actively support the child’s relationship with the other parent, which includes looking at whether a parent has denied the other parent access to the child in the past, without good reason for doing so;
- the willingness and ability of each parent to maintain a close and continuing relationship with the child;
- the ability of each parent to cooperate with the other parent in resolving disputes regarding matters that affect the child;.
- the preference of the child, if the child is old enough to understand and express such a preference;
- Note: The court will consider any likelihood of improper influence by one or both parents on the child’s decision; and
- any other factor the court feels is necessary and proper in order to make a decision about custody.2
1 Va. Code § 20-124.2(B)
2 See Brown v. Burch, 519 S.E.2d 403, 408 (Va. App. 1999); Va. Code § 20-124.3
If I have moved away from the house where my spouse and children currently live, will this hurt my chances of gaining custody?
The judge will take into consideration the role that each parent has played in the child’s life, and the willingness of each parent to maintain a close and continuing relationship with the child.1 If you have moved away from your child for a significant period of time, it may affect how the judge views these two factors.
However, it is important to remember that a judge will take into account a history of family abuse and sexual abuse.2 Therefore, if you have moved away to escape abuse, you can explain to the judge why it was necessary for you to leave the home where your child currently lives. You may strongly consider getting a lawyer in this situation. Go to VA Finding a Lawyer for more information.
1 Va. Code § 20-124.3(5) & (7)
2 Va. Code § 20-124.3(9)
How much does it cost to file a custody petition?
A fee of $25 is generally required for filing either a custody or visitation petition in court.1 There may be an additional fee for serving the other parent with the custody papers, which is usually done by a sheriff, third party, or process server.
If you cannot afford the filing fee, you may be able to have the fee waived when you file the petition if you are a Virginia resident. (If you are not a Virginia resident, you could only get court fees waived if you are the defendant in the case.)2 You can ask the clerk of court for more information about how to ask for a fee waiver when you file your petition.
1 Va. Code § 16.1-69.48:5
2 Va. Code § 17.1-606
Do I need a lawyer?
You do not need a lawyer to file for custody. However, it is highly recommended that you get a lawyer if you can, especially if the other parent has one. Custody cases can be complicated, and it is helpful to have someone guide you through the process.
If you cannot afford a lawyer, you may be able to find free or low-cost legal help in your area on the VA Finding a Lawyer page.
Even if you plan on representing yourself, you may want to consider having a lawyer review your papers before you file them. Avoiding mistakes as much as possible will help to save time and money, and can improve your chances of success.
If you are going to be in court without a lawyer, our Preparing for Court – By Yourself section may be useful to you.
Can I file for custody in Virginia? (Which state has jurisdiction?)
Generally, you can file for custody in Virginia only if Virginia is your child’s “home state.”1 There are exceptions, however, which will be discussed more below.
Virginia will likely qualify as your child’s home state if:
- Your child has lived in Virginia for the last 6 months in a row or longer;
- Virginia was the last state that your child lived in for at least 6 months in a row or longer (and now s/he has been living somewhere else for less than 6 months but a parent still lives in Virginia); or
- Your child is less than 6 months old, but has lived in Virginia since birth.
Leaving Virginia for a short period of time will not change the fact that Virginia is your child’s home state.2
If you and your child recently moved from Virginia to another state, generally you cannot file for custody in that new state until you have lived there for at least six months. Until then, you or the other parent can start a custody action in Virginia, as long as your child has most recently lived there for at least six months. There are some exceptions, however:
- In some cases, you can file for custody in Virginia when it is not your child’s home state if you (or the other parent) and your child have a “significant connection” to Virginia and substantial evidence is available in Virginia concerning the child’s care, protection, training, and personal relationships. Generally, however, you can only do this if no other state qualifies as your child’s home state, or if the home state has agreed to let Virginia have jurisdiction (power) over your case.3 This can be complicated, and if you think this applies to you, please talk to a lawyer in both states about this if possible. For a list of legal resources in Virginia, please see VA Finding a Lawyer.
- You can file for temporary emergency custody in Virginia if it is not your child’s home state if:
- the child is present in Virginia; and either
- the child has been abandoned; or
- it is necessary in an emergency to protect the child because the child, a sibling, or a parent of the child (you) is subjected to or threatened with mistreatment or abuse.4
- the child is present in Virginia; and either
1 Va. Code § 20-146.12(1)
2 Va. Code § 20-146.1
3 Va. Code § 20-146.12(2), (3)
4 Va. Code § 20-146.15(A)
If the judge denies a request for custody, does s/he have to explain why?
Virginia law requires that the judge communicate the reasons for his/her decision, either in person or in writing. If the judge did not do this at the hearing, you may want to contact his/her court assistant to ask for an explanation in writing.1
However, the judge does not have to explain every aspect of his/her decision-making process in detail, only the main reasons for the decision.2
1 Va. Code § 20-124.3
2 See Kane v. Szymczak, 585 S.E.2d 349, 353 (Va. App. 2003)