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

When will my case come to trial?

            This depends on the nature of the case, how many studies and exams are ordered, and where the parties live.  It also differs from court to court and from case to case.  In general, it takes from one to three months from the first court hearing to the trial.

            How long will the trial be?

            This also depends on the nature of the case, and differs from court to court and from case to case.  Sometimes the order from the first court hearing sets a time limit for the trial.  This can range from 15 minutes to several hours.  If there is a time limit, the trial needs to stay within that limit.  Even if a time limit has not been set, the Judge usually wants the trial to take only as much time as needed to reach a fair decision.  This also can range from 15 minutes to several hours.

            How should I prepare for trial?

When you go to court for trial, get prepared in advance.  Bring papers and witnesses that support your case.  These are some of the papers you might want to bring.

? 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.

? The child's report card and medical records.

If a witness doesn't want to come to court, you can ask the Clerk to subpoena the witness. 

A subpoena is a court order that says a witness must come to court.  You need the full name and current physical address (not a Post Office box) for each witness.  You must give this information to the Clerk at least 10 days before the trial date.

If someone has a paper but doesn't want to bring it to court, you can ask the Clerk to subpoena the papers.  This is called a subpoena duces tecum.  This is a court order that says a person must bring the papers to court.  You need the full name and current physical address (not a Post Office box) for the person who has the papers.  You must give the name and address of the person who has the papers, and a description of the papers you want, to the Clerk at least 15 days before the trial date.

You must pay $12.00 for the subpoena or the subpoena duces tecum.  If you don't have

enough money to pay this (or any other) fee, ask the Clerk for the "Affidavit in Support of Application for Proceeding in Custody or Visitation Cases without Payment of Filing Fees."  This also is called "Form DC-606."  You must be a Virginia resident to file this form.  Only the Judge can grant your request to proceed without paying fees.  The Judge must grant or deny your request within one business day.

            For custody and visitation cases, you should have two visitation plans prepared before you go to court.  The first visitation plan should tell the judge what visitation you are willing to give to the other party if you should get custody.  The second visitation plan should tell the judge what visitation you want if the other party should get custody.  They do not have to be the same.

            You should decide how often visitation is to occur, how you propose to handle the major holidays and the summer, where you plan to meet to exchange the child for visits, and any other important issues.

Can I call, write to, or talk with the Judge outside of court?

            No.  You may not call, write to, or talk with the Judge about your case outside of court.  The decision must be based only on the evidence the Judge hears in the case.  The Judge may hear this evidence only in court, after all parties have had notice and a chance for a hearing.

            What happens at trial?

            You must get to court on time.  If you're not there on time, the case could be dismissed or a court order could be entered against you.  In addition, the Judge could issue a show cause order for your arrest if you do not appear in court.

            Remember always to be polite when talking to the Judge.  Address the Judge as "Sir" or "Ma'am" or "Your Honor."  Never interrupt the Judge when the Judge is speaking.  If you are not sure if you can say anything, wait until the Judge has stopped talking, and ask the Judge if you may say something.

            At trial, the Judge wants to hear your side of the story and the other party's side.  To explain how this is done, let's assume you are the petitioner - the person who filed for custody or visitation.  If you are the other party, read this explanation as if you are the respondent.

Both parties are given a chance to give a very short summary of what they are going to

prove.  This is called an "opening statement."  The petitioner goes first.  Then the respondent

gives an opening statement.

After the opening statements, you, as the petitioner, put on evidence and tell your side of the story.  Evidence is testimony by sworn witnesses, papers, and anything else that you want to show the Judge to help explain why you should get the custody or visitation you are asking for.  Asking yourself what would convince you - if you didn't know anything at all about the case -

often is a good way to help decide what evidence to offer.

When you tell your side of the story, you and your witnesses must swear or affirm to tell the truth.  You also should show the Judge, and the other party, any papers that back up your story or would help the Judge decide the case, and can be admitted into evidence.  Papers and records kept in the course of business usually can be admitted into evidence.  However, letters, statements and affidavits from those not a party generally can't be admitted into evidence.

After you have told your side of the story, the respondent can "cross-examine" you by asking you questions about what you have just said.  The Judge also may ask you questions.

You can have your witnesses testify in any order you wish.  After each of your witnesses has testified, the respondent has the right to "cross-examine" that witness by asking the witness questions about what he or she has just said.  The Judge also may ask your witnesses questions.

            Many judges prefer that no more than three or four witnesses testify for each side, so pick your best witnesses.  The best witnesses are those who know you and your child the best.  The most impartial (unbiased) witness is someone who is related to the other side, but is willing to testify on your behalf.  The next best witness is someone not related to any of the parties.

After you and all your witnesses have given evidence, the respondent puts on his or her evidence.  The respondent and his or her witnesses tell their side of the story.  The respondent also may present any papers that can be admitted into evidence which back up his or her side of the story.  You have a right to cross-examine the respondent and his or her witnesses by asking them questions about what they have just said.  The Judge also may ask questions.

After both sides have presented all their evidence, each side has the right to make a short statement summarizing the case.  This is called a "closing statement."  In the closing statement, you should explain to the Judge in a general way why you should win.  Stress how it is in the "best interests" of the child for you to have custody or visitation.  If the other party's evidence doesn't make any sense, this is your chance to point that out.  In his or her closing statement, the other party can point out any weaknesses in your position.

            After both sides have finished closing statements, the Judge will make a decision as to custody and visitation.  Usually the Judge will tell you right then what that decision is.

            How does the Judge decide about custody?

            Judges look at many factors in deciding child custody.  The most important factor is the

role that you have played in the past upbringing of the child, and the role that you will play in the future upbringing of the child.  The Judge also will look at the following things.

            ? The age and mental condition of the child.

? The age and mental condition of each parent.

? The relationship between each parent and the child.

? The needs of the child.

? The best interests of the child.

? Willingness of each parent to actively support the child's contact with the other parent.

? Willingness of each parent to keep a close relationship with the child.

? Willingness of each parent to cooperate and resolve disputes.

? Any history of family abuse.

            What else does the Judge look at when deciding custody or visitation?

Certain factors can be extremely harmful in a party's petition for custody or visitation.  Among these are the following things.

? Alcohol abuse.

? Illegal drug use.

? Prescription drug abuse.

? Adultery and/or living in a sexual relationship with a person who is not your legal

spouse.  (Common law marriage is not legal in Virginia.)

? Criminal convictions.

? Founded Child Protective Services (CPS) complaints.

? Civil commitment and/or mental health hospitalizations.

? Physical or mental impairments that would affect your ability to care for a child.

            Does the Judge take into account what the child wants?

            The preference of the child can be a factor, depending on the child's age.  Children under the age 7 generally are not asked what they want.  If they are, it often is given little weight.  Children between 7 and 13 sometimes are asked what they want.  Their preference sometimes is given weight, depending on the age and maturity of the child.  Children 14 and older must be asked what they want.  Their preference usually is given great weight, unless it is unreasonable.

            If the Judge wants to hear from a child, this usually is done in the Judge's chamber or office, without the parties or their attorneys being present.  Never ask the child any questions about anything that was said in the Judge's chamber!  Never coach a child about what to say to the Judge or anyone else about custody or visitation.

            How does the Judge decide about visitation?

Virginia law requires a Judge to assure regular and frequent contact of the child with both

parents.  If you don't get child custody, the Judge almost always will give you child visitation.  If you can work things out with the other party, you may be given "liberal and reasonable visitation."  If you can't work things out with the other party, you may be given visitation at specific times.  This depends on many things, such as how far you live from the other party, and how much contact you've had with the child in the past.

Can I be kept from my child completely?

You can't be kept from your child completely unless your parental rights have been terminated (ended) by a court.  However, if you're an unfit parent or would be a danger to your child, the Judge can order that DSS, or some responsible adult, supervise your visitation.

            What happens after trial?

After both sides have finished closing statements, the Judge makes a decision as to custody and visitation.  Usually the Judge tells you right then what that decision is.  The Judge also issues a written order.  This may be a pendente lite order if the Judge plans to hear or review the case in the future.  This also may be a final order.  Get a copy of the Judge's written order.

            Can I appeal a J&DR court custody or visitation order?

            Only a final order can be appealed from J&DR Court.  You must file the appeal in writing.  The appeal must be filed within ten days after the final order is entered.  If the tenth day falls on a Saturday, Sunday, or legal holiday, the appeal can be filed on the next business day.  You must file the appeal in the Clerk's office of the J&DR Court that heard your case.  The appeal will be tried again in the Circuit Court as though the case had not been tried in J&DR Court.  Unless changed by a Judge, the J&DR Court order stays in effect during the appeal.

            How do I enforce a J&DR court custody or visitation order?

            If a court order is not being obeyed, you may go to court to ask the Judge to enforce the order that is being disobeyed.  You do this by filing a Motion for Show Cause Summons.  You file this with the court that issued the last order.  However, if the court that issued the last order referred or transferred the case to another court, you would file with the new court.

            How do I change a J&DR court custody or visitation order?

            Once child custody or visitation has been set, it can't be changed unless there has been a

material or important change in circumstances or events since the prior court order.  Without

this, the court is not very likely to amend or change the last order.  You can't bring up things that happened at or before the last court hearing.  You only can bring up things that happened since the last court hearing.  Only a Judge can change a court order.  The Judge does this by issuing a new order.  If there has been an important change since the prior court order, you would file a Motion to Amend or Review Order.  You file this with the court that issued the last order.  However, if the court that issued the last order referred or transferred the case to another court, you would file with the new court.