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Legal Information: Virginia


December 4, 2020

The steps for filing for custody will depend on your particular situation, such as whether or not you will be filing for custody as part of your divorce or separation action, as part of a paternity action, or on its own.  It is best to talk to a lawyer before starting this process, or at the very least have a lawyer look over your papers before you file them so you can make sure you are not making any mistakes.  For more information, see Do I need a lawyer?  Below, we provide a general outline of the steps for filing for custody.

Step 1: File the custody petition in court.

To get a custody order from a court, you will need to start by filing a petition in the Court Service Unit of a juvenile and domestic relations district court in the county where your child is living.1  For a list of courthouses in Virginia, please see our VA Courthouse Locations page.

You will be charged a fee of $25 unless you are a low-income person and apply to have that fee waived.2

On the petition, you will be asked to provide your address.  If you do not want the other parent to know your address because you fear physical harm, be sure to tell this to the clerk and ask how your address can be kept confidential.

1 See Virginia’s Judicial System website, Frequently Asked Questions
2 Va. Code §§ 16.1-69.48:5; 17.1-606

Step 2: Get the custody papers served on the abuser.

After you file for custody, you will have to make sure that the other parent gets legal notice of the court case by having him/her served with the custody petition and accompanying legal documents (called “service of process”).  This is done by having a third party (i.e., a process server, someone from the sheriff’s department, or anyone over 18 who is not involved in the case) hand copies of the legal papers to the other parent.  Depending on who does the service, there may be a fee.  For a list of sheriff departments in Virginia, please see our VA Sheriff Departments page.

You can find more information about service of process in our Preparing for Court – By Yourself section, in the question called What is service of process and how do I accomplish it?

Step 3: Appear in front of the judge.

Your case will be assigned to a particular judge after the petition is filed.  All of your court dates will generally be scheduled with your assigned judge.  You may appear in front of the judge on the date you file if you are asking for immediate temporary custody.  Otherwise, you may be given a date to return to court to appear in front of the judge.  The abuser will also be able to appear in court on that date as well.

Once you are both in front of the judge, you may be asked to participate in mediation (also called alternative dispute resolution).  If you are afraid of the other parent, or there is a history of family abuse, you can ask the judge to skip the mediation step.1  See What is mediation and who pays for it? for a detailed explanation of mediation.  If you do reach an agreement through mediation, the judge will review it and then it will become a court order, unless the court finds that the agreement will not be in the best interests of the child.

If you do not reach an agreement during mediation, or you do not go through mediation, you will have a hearing in front of a judge where both parents will be able to present evidence and witnesses to strengthen their case. There may be multiple hearings before the judge issues a judgment or final custody order.  We strongly suggest you get a lawyer to represent you in the hearing to make sure your interests are protected.  Go to VA Finding a Lawyer page to find free and paid lawyers.

1 Va. Code § 20-124.4