How to Take a Child Custody or Visitation Case to Court - Planning for Trial -

What should I bring when I file court papers for custody or visitation?

            When you go to file court papers for custody or visitation, take as much of the following information as you can.

? The child's full name, date of birth, Social Security number, present address, and

addresses for the past five years.

? Your name, Social Security number and present address.

? The name, Social Security number and present address (physical address and mailing

address) of the mother, father, any other party, and any person who presently has the child.

? The current marital status of the mother and the father.

? Any divorce decree or order for the child's parents.

? Any prior child custody and child visitation orders for the child.

? Any prior child support orders, both court orders and administrative orders, for the

child.

? Any paternity acknowledgements, determinations or orders.

? Any separation agreements that deal with the child.

? Any Protective Orders about either parent, any party in the case, or the child.

? Any presently pending court papers about the child.

            What happens after I file court papers?

The court papers must be served (legally delivered) on all other parties.  The papers tell all parties the date, time, and place of the first court hearing.  This hearing may be the only chance for the parties to dispute child custody or visitation.

            How do the court papers get served?

            Court papers may be served on a party in Virginia in three different ways.

            ? Given in person, usually by a Deputy Sheriff, or,

? Given to a member of the household, usually by a Deputy Sheriff.  The household

member must be 16 or older.  The person serving the court papers must explain what they are, or,

? Posted on the front door and then mailed to the party by first class mail.

Court papers can be legally served on you, even if you never actually get them.  If they were properly given to a household member who didn't tell you about them, you still were legally served.  If they were properly posted and mailed to you but you never saw them, you still were legally served.  Both these things are unusual, but they do happen.  You should tell household members to pay attention to court papers, and you should pay attention yourself.

            If a party does not live in Virginia, how do the papers get served?

            Generally, court papers are served on a party outside Virginia in two different ways.

? Mailed by the court clerk by certified mail, return receipt requested.  If the party

signs and returns the green return receipt, the court papers have been served, or,

? Given in person, usually by a Deputy Sheriff in the other state.

            If a party is in jail or prison, how do the papers get served?

            If a party is jailed, court papers still can be served on the party in the usual ways.  However, if a party is jailed, under the age of 18, in a mental hospital, or legally not competent, another step is needed.  Custody or visitation can't be ordered unless the court appoints an attorney for that party.  This attorney is called a Guardian ad litem.  The attorney's fees usually have to be paid by the person filing the case.    

            If a party's whereabouts are not known, how do the papers get served?

If a party can't be found, the court papers can be served by publishing in the newspaper.

This generally costs at least $150.00.  The costs usually have to be paid by the person filing the case.  In some cases, the judge may decide it's not necessary to publish the notice in the newspaper, and will have the notice posted in the courthouse instead.  This approach avoids the costs of paying the newspaper to publish the notice.

            What usually happens at the first court hearing?

            At the first court hearing, the Judge may do any or all of these things.

            ? Approve an "agreement" worked out by the parties.

? Send the parties to a "mandatory mediation conference."

? Order the parties to take a "parent education seminar."

? Appoint a "Guardian ad litem" for the child.

? Appoint a "Court Appointed Special Advocate (CASA)."

? Order a "home study" on the parties.

? Order a "psychological evaluation" on the parties.

? Enter a "temporary custody or visitation order."

            ? Determine the issues before the court.

? Determine how certain documents will be introduced into evidence at the trial.

            What is an "agreement"?

            An agreement is a legally binding arrangement between the parties.  It is like a contract.

This can be in writing or it can be oral.  If an agreement is in writing and you sign it, that means you read it, understood it, and agreed with it.  This usually is true even if you have not or could not read it.  This usually is true even if you were physically or mentally impaired.  If you do not understand an agreement, get individual legal advice before you sign. 

If an agreement is oral, the Judge will put it in writing in a court order.  Be sure to get a copy of the court order right away.  If the court order is not the same as your agreement, let the court know as soon as you can.

            What is a "mandatory mediation conference"?

            Mediation is when a trained outside person (a mediator) helps the parties talk to each other, and try to understand and solve their dispute.  A mediator does not decide anything or force a solution.  It is up to the Judge whether to refer a case for mediation.  Usually mediation is not used when there has been domestic violence or family abuse.  The parties do not have to pay for mediation.  If an agreement is not reached by mediation, the Judge will hear the case.

            What is a "parent education seminar"?

In Virginia, as part of the initial (first) case about custody or visitation for a child, the parents must attend a parent education seminar.  This is a class that teaches parents about the effects of separation or divorce on children, the duties of parents, how to solve disputes, and the parents' financial obligations.  The class must be at least four hours long.  The parties must go to the class within 45 days of the first court hearing, or have gone within 12 months before the first court hearing.  The parties are charged up to $50 for the class, with the fee based on ability to pay.  The court may excuse attending the class only for a good reason.  Everything in the class is private, except for statements about crimes, child abuse, or child neglect.

            What is a "Guardian ad litem"?

The Judge may appoint an attorney for your child.  This attorney is called a Guardian ad litem (GAL).  The GAL's job is to meet with your child and tell the Judge what the GAL believes is best for your child.  The GAL is allowed to look at and copy any government, school or medical records about your child.  The GAL acts as an attorney and not a witness.  The GAL should not be cross-examined and, more importantly, should not testify.  You should cooperate with the GAL by answering the GAL's questions and letting the GAL visit with you or your child.  The GAL represents the best interests of your child.  The GAL does not represent you.  The parties do not have to pay for the GAL.

            What is a "Court Appointed Special Advocate (CASA)"?

            The Judge also may appoint a Court Appointed Special Advocate (CASA) for your child.  The CASA is a trained volunteer meets with you and your child, as well as others involved in the case.  The CASA reports to the Judge about how your child is doing and what the CASA believes is best for your child.  You should cooperate with the CASA by answering the CASA's questions and letting the CASA visit with you or your child.  The CASA may not call or question witnesses, but may testify if called as a witness.  The parties do not have to pay for the CASA.

            What is a "home study"?

            The Judge may order the proper local Department of Social Services (DSS) to investigate the home and other conditions about the child and the parties to the case.  This written report is called a home study.  It tells the Judge facts about the parties, such as:

            ? Who lives in the household.

? Age, sex, education, and marital status of household members.

            ? Family history.

            ? Employment history.

? Income, expenses, assets and debts.

? Relationships with the child.

? Physical and mental health of the parties and the child.

? Description of the home and housekeeping standards.

? Description of the neighborhood and schools.

? References from friends and neighbors.

? Alcohol abuse or illegal drug use.

? Any history of domestic violence or family abuse.

? Any history of child abuse or child neglect.

? Any criminal history.

The home study usually is done by a DSS social worker.  You should cooperate with DSS by answering DSS's questions and letting DSS visit with you or your child.  DSS will make at least one, and often several visits to your home.  DSS's report must be filed with the court at least five days before a hearing.  The court must give a copy of the report to all attorneys in the case, and to any party who does not have an attorney.  The report may not be copied.  The parties are charged for the cost of doing the home study, with the fee based on ability to pay. 

            What is a "psychological evaluation"?

            The Judge also may order a psychologist to examine the child and/or the parties to the case.  The psychologist may work for the court or be in outside practice.  The psychologist will assess your mental health, and your history as, and ability to be, a parent.  You need to cooperate with the psychologist and attend all appointments.  A report will be filed with the court at least five days before a hearing.  The parties are charged for the cost of doing the exam, with the fee based on ability to pay. 

            What is a "temporary custody or visitation order"?

            The Judge rarely makes a final decision on custody or visitation at the first hearing.  Instead, the Judge will issue a temporary custody and visitation order.  This stays in effect until the case is ready for a final decision.  A case is ready for a final decision only after the parties have attended the parent education seminar, and all studies and exams have been done.  At the first hearing, the Judge will hear a small amount of evidence to learn where the child is living and whether that is a fit place.  Usually, the temporary order will not change where the child is living unless the child would be in danger there.  The temporary order does not suggest how the Judge will rule on the final decision.

            Will the court appoint an attorney for me?

            No.  In most cases, the court will not appoint an attorney for a party in a child custody or visitation case.