Top Challenges You’ll Face When Filing for Custody in Virginia

Child custody invokes strong emotions and intense personal interest from all parties involved.  Matters involving the best interests of one’s child or children can have serious consequences.  Money is fungible and can come and go — your children are your children.

Sometimes a parent in a child custody dispute will say to the other parent, “That’s it — I’m going to sue you for sole custody.”  Few people though know what that really means and what is in store for them.  Filing for custody in Virginia poses many challenges and understanding these challenges will make an already difficult process less frustrating.

What is custody?

It is important for parents to understand there are two categories of custody. There is legal custody and physical custody.  Legal custody means the right to make important decisions for the child when it comes to their health, education and welfare.  Legal custody can be sole or joint.   Physical custody means where the child spends a majority of their time.  Physical custody can take the form of sole physical custody to one parent, with visitation rights to the other parent, or shared physical custody.

Can I even file for custody now?

For married parents living under the same roof, they may argue a lot, may talk about separation or divorce, but may not be in a position to file for custody yet.  Courts will only entertain matters that are legitimately in controversy.  In order for a married parent to request custody, they cannot be in an otherwise intact relationship living under the same roof.  The intact family unit is deemed inviolate, and courts will not step in to resolve temporary disputes.  For unmarried parents, there may be situations, such as in education, health care or a passport application, that require the parent to present a court order.  Thus, it is possible for an unmarried parent, even if in a relationship with the other parent, to request a custody order.

Where do I file?

For unmarried parents in Virginia, you must file a Petition for Custody in the Juvenile & Domestic Relations District Court (J&DR) in the city or county in which the child resides.  J&DR courts are generally user-friendly and have staff on hand to help litigants without an attorney during the initial intake process.  They cannot give legal advice, but they can help with the paperwork.  For married parents who have not yet filed for divorce, you must also file in the J&DR Court.  Divorce actions are filed in the Circuit Courts.  So if custody is at issue and you are filing for divorce, you have the right to have custody addressed in the Circuit Court, along with other matters pertaining to your divorce.  However, you must raise the issue of custody in your divorce fillings.  In most cases, it is best to have all matters in a divorce addressed in one court rather than two, so make sure your divorce filings request custody.  A word of caution to the unrepresented litigant—Circuit Courts are much less user-friendly than J&DR courts and are much more difficult to maneuver procedurally without an attorney.  Even if you are unmarried and proceeding in J&DR Court, it is still wise to retain an attorney to represent you.

What can I expect in custody litigation?

Before you obtain your final outcome, there are numerous things that may happen. Discovery could be initiated. Discovery is a process whereby a party may seek answers to interrogatories (questions), production of documents and admissions from another party. Psychological evaluations of a party, both parties and/or the child(ren) may be ordered. A guardian ad litem may be appointed. A guardian ad litem is an attorney appointed by the court to represent solely the best interests of the child(ren). Drug tests and substance abuse evaluations may be ordered. There may be a temporary custody order, with or without visitation rights granted the other parent, entered pending a final hearing.

What are my chances at getting custody?

This question is often asked at initial client conferences, but it is difficult to answer as each case turns on its facts. However, there are a few factors to consider in determining whether you have a reasonable chance of getting custody. There is no longer a gender presumption in Virginia law in custody cases.  Nonetheless, great weight is given to which parent has been the primary caregiver. In today’s world, caregiving is often a shared role and it is often hard to label one parent primary caregiver over the other.  Yet many families still do have one primary caregiver and the other the primary financial provider.  All other things being equal, if the children are doing well and there are no mental health or substance abuse issues with the primary caregiver, it will be an uphill climb for the other parent to obtain custody.

What evidence do I need to present in court?

Custody evidence is all about the best interests of the child, not the best interests of the parent.  There are twelve best interest factors under Virginia law and they can be found in section 20-124.3 of the Virginia Code. Some factors may be more relevant to your case than others. It is yours and your attorney’s job to tailor the evidence presented in court to the factors in the code. For example, if you believe that the other parent is trying to prevent your child’s relationship with you, then text messages, e-mails and legally admissible recordings are critical to your case. If you believe that you are the better parent to meet your child’s intellectual, emotional and physical needs, then evidence of who takes the child to the doctor, knowledge of the child’s medical conditions, who drops-off/picks-up the child from school, who has met with the teachers, who the teachers communicate with on a regular basis, who arranges play dates and get-togethers with other kids—all of this needs to be coherently presented to the Court.

I am a grandparent, aunt, uncle, sibling. Can I file for custody?

Virginia law allows any “legitimate person of interest” to file for custody. “Legitimate persons of interests” may include but not be limited to, grandparents, aunts, uncles and siblings who have had significant connection with a child. However, there is a legal presumption that a parent should get custody of a child. In order for a non-parent to get custody, they must overcome the parental presumption, which must be proved by clear and convincing evidence showing both parents as unfit, abandonment of child(ren), voluntary relinquishment of child(ren) or special facts and circumstances that constitute an extraordinary reason to remove the child from the parents.

Can I appeal a decision I don’t like?

If your case starts in the J&DR court, you have the automatic right to what is known as a trial de novo to the Circuit Court. A trial de novo gives you the opportunity to present evidence and argue your case fresh before a different judge and a different court.  The Circuit Court judge is not bound by anything the J&DR Court judge said, did, or ordered.  Keep in mind that in most cases, the J&DR Order stays in effect pending the appeal to Circuit unless you successfully seek a stay of the Order from the J&DR judge.  If your case begins in Circuit Court or if you’ve had your trial de novo in Circuit Court and you still do not like the decision, the only other recourse is noting an appeal to the Virginia Court of Appeals. However, custody decisions are afforded great deference by the Court of Appeals and are rarely overturned.  Unless the Circuit Court judge made a material error of law or there exists no evidence that could possibly support the decision, the Circuit Court custody order will likely be upheld.

In all of the instances where a litigant may be considering an appeal, whether from J&DR or Circuit, they should think long and hard about the cost and probability of success. Instead, it may be wise to wait for a “material change in circumstances” to the existing Order and file for a modification of custody at the appropriate time. A material change in circumstances means a significant fact or event that has occurred since the most recent order that warrants a change in custody in the child’s best interests.

Whatever custody challenge you may face, it is always advisable to seek the advice of an attorney, especially after the initial filing phase if you have not done so already. Finally, no matter how contentious your situation is, do not involve your children in the middle of your dispute and do not speak poorly about the other parent to your children. In custody litigation, you always want to put your best foot forward.


Demian McGarry  
About the Author
A resident of Arlington since 1999, Demian J. “Dem” McGarry has focused his practice on providing assertive, diligent yet sensitive representation to clients facing issues of divorce, custody, visitation, international custody, property distribution, post-divorce enforcement actions, pre-marital and post-marital agreements, and appeals. While always trying to reach an amicable settlement first, Mr. McGarry has extensive experience in high conflict divorce and custody cases. Mr. McGarry also has two reported cases and has been counsel on several other appeals before the Virginia Court of Appeals.
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