Updated: Jan 18
We often get calls from people that are recently separated or were never married but they have a child or children and there has never been a child custody Order. This creates a lot of child custody questions including the most obvious – who has custody? Other common questions are who has custody or what happens if he/she does not let me see our child?
Let us be perfectly candid – this is not a tutorial or a “do it yourself” instructional manual. Every case is different. Every Court may have some slight differences. It is also not creating an attorney-client relationship. This post is to help you understand the process, hopefully answer some questions, and, perhaps, make your consultation with an attorney a little easier.
There is quite a bit of information that can be shared regarding these issues. Child custody is a very fact specific issue and can, therefore, vary from case to case. Also, one variable can make a significant difference. So to at least get people started, we decided to do this blog post to literally advise people how to start a child custody case in Virginia.
At the beginning, we just want to tell you that whether it is in Chesapeake, Virginia Beach, Norfolk, Portsmouth, Suffolk, or anywhere else in the 757 area code the process is fairly similar. There may be some subtle nuances or differences. For example, one court may want you to set up an appointment for an intake, another may want you to arrive before a set time, and another may have you come in whenever they are open. The best way to know is to call the Court and ask for the intake department to ask how to come in and file for child custody.
The alternative is hiring an attorney. In Chesapeake, for example, you can hire an attorney who will prepare the paperwork for you and then you come in to sign the paperwork. The attorney’s office will file the paperwork for you bypassing the process for you. This process is substantially similar in Virginia Beach, Norfolk, Portsmouth, Suffolk, etc.
So what is it that you are filing? There are three documents but the “main” one is a Petition for Custody or Initial Custody Petition. The other two documents are a UCCJEA as well as Service Member’s Civil Relief Act affidavits. The Petition is the document that asks the Court for custody. The Court can only do what it is asked to do by the paperwork filed. So if you want visitation and file for custody, then the Court cannot Order visitation. So be clear when you are talking with your attorney or the intake person about what you are requesting. Also, your attorney can file your child custody Petition in Virginia on your behalf.
The UCCJEA affidavit is a form that is based on an agreement between all of the states to maintain some consistency. This is done so a parent cannot abandon a state and file documentation to keep a child away from a parent. There are exceptions to allow for emergencies if the situation calls for it. This is something that has to be signed by the person filing, under oath, in front of a notary or Court clerk.
The Service Member’s Civil Relief Act affidavit is very simple to explain. The person filing has to sign an affidavit letting the Court know if anyone is on active duty with the military at the time of filing. If the answer is “yes”, the Juvenile Court can go forward in Virginia on the child custody matter.
The last two things that you have to do when filing for child custody in Virginia is to determine how the paperwork will be served and pay the necessary fees to the Court. So serving the paperwork is quite simple. There are only two options – sheriff’s department or private process server. The clerk’s office will ask you which method you prefer. To be honest the easiest method for lay people is to let the sheriff’s department handle it. This will be coordinated by the clerk and the sheriff will serve the paperwork then return proof that they served it to the clerk. A private process server is a useful and helpful alternative which is commonly used by attorneys. The problem with a lay person trying to take advantage of this in Virginia is that there is leg work involved in coordinating with the private process server for the lay person. It may be more than you want to deal with and you may find it easier to just let the Court handle service otherwise your child custody Petition may get delayed.
Then there is the fees aspect. The different Juvenile & Domestic Relations Courts in the 757 area code may have different fees. It is really important to check with the Court to insure that the correct fee is paid. If not, this will delay a court date.
What happens next? Well that depends on the facts and circumstances of the situation as well as the procedures in each Court. For example, the normal procedure in Chesapeake Juvenile Court is to refer the parties to mediation to attempt to resolve the case while having a fall back “first return date” when the parties appear before a judge for the first time. At this hearing, the Court will probably appoint a Guardian ad Litem for the child/children and set a trial date for a full blown trial. Similarly, Norfolk Juvenile Court’s process is comparable to Chesapeake’s, however, you may not get to mediation before the first return date. Then Virginia Beach Juvenile Court actually appoints a Guardian ad Litem when the child custody Petition is filed and sets a first return date. It is at that point that the Court decides whether to have a trial, refer to mediation or some other alternative. Now again – these are not hard and fast procedures and each Court may change it at any time. Make sure that you check to confirm the process when you file your initial Petition.
If you have questions about your divorce or separation, give us a call at 757-454-2110 or go to our Contact page here to set up a free consultation with a lawyer.