How Custody Court Works in Virginia

Two trial courts can decide custody

Under Va. Code § 16.1-241(A)(3), each juvenile and domestic relations district court has jurisdiction, within the territory for which it is created, over a child whose custody, visitation, or support is a subject of controversy or requires determination. That jurisdiction is concurrent with, and not exclusive of, courts having equity jurisdiction, which in practice means the circuit court, except as § 16.1-244 provides.

The circuit court can also decide custody, visitation, and support when they are incidental to a divorce or other case pending there (§ 16.1-244(A)). When a divorce suit raises custody, visitation, or support in the pleadings, and a hearing on that issue, including a pendente lite hearing, is set for a date certain or placed on a motions docket within 21 days of the filing, the J&DR court is divested of the right to enter further orders on those issues, and the circuit court decides them unless both parties agree to a referral to the juvenile court. The J&DR court keeps the power to enforce its own valid orders for the period before a conflicting circuit court order is entered.

After a final divorce decree, the circuit court may transfer custody and support matters to the J&DR court on the motion of either party, and it may do so before the decree only on a motion joined in by both parties (§ 20-79(c)). The court’s self-help page explains that if you already have a J&DR order and are not involved in a divorce, you ask the same J&DR court that entered the last order to change it.

Who you deal with

• The court service unit intake office. Petitions that start a J&DR case are the responsibility of the intake officer, and the intake officer must accept and file a petition alleging that a child’s custody, visitation, or support is in controversy or requires determination (§ 16.1-260(A) and (C)). An attorney may file a client’s petition directly with the clerk, and motions and later pleadings in a case are filed directly with the clerk.
• The clerk’s office. The judiciary’s J&DR pamphlet describes the clerk’s office as processing case papers, keeping records, and issuing subpoenas on request. Court staff can give general procedural information but cannot give legal advice.
• The judge. The pamphlet notes that J&DR courts are district courts, which in Virginia are not courts of record, and that there are no jury trials there. The judge hears and decides every case.
• A guardian ad litem, sometimes. In a custody case the court may appoint an attorney as guardian ad litem for the child, but where each parent claiming custody has a lawyer, it does not unless it finds the child’s interests are not otherwise adequately represented (§ 16.1-266(F)).

Hearings and records are private

The general public is excluded from all J&DR hearings, and only persons the judge deems proper are admitted, with exceptions for adult criminal cases and certain felony charges against juveniles 14 or older (§ 16.1-302(C)). The pamphlet adds that records of civil juvenile cases, including custody, visitation, and support, are confidential and cannot be inspected by the general public.

How a case moves

• Petition. A verified petition is filed (§ 16.1-262(C)), with the custody information required by § 20-146.20. See the petition guide.
• Summons. The court directs summonses to the parties, which require them to appear in person at the time set (§ 16.1-263(A)).
• Parent education and mediation. In contested cases, parties must show they attended or will attend an approved educational seminar (§ 16.1-278.15(A)), and the court refers appropriate cases to a dispute resolution orientation session (§ 20-124.4).
• Hearing and order. The judge decides custody and visitation based on the best interests of the child and must tell the parties the basis of the decision, orally or in writing (§ 20-124.3).
• Appeal. A final J&DR order can be appealed to the circuit court within 10 days of entry, where it is heard de novo (§ 16.1-296(A)).

Rules that apply

Part Eight of the Rules of Supreme Court of Virginia governs all proceedings in the J&DR district courts (Rule 8:1). The Virginia Rules of Evidence in Part Two apply generally to civil actions in the J&DR courts (Rule 2:1101(a)). The substantive custody law is in Chapter 6.1 of Title 20 of the Code of Virginia (§ 20-124.1 and following), and the J&DR court is directed to apply it in custody and visitation cases (§ 16.1-278.15(G)).

Primary sources

Laws, rules and forms change. Check the current version at the source before you file.

• Va. Code § 16.1-241, J&DR court jurisdiction
• Va. Code § 16.1-244, concurrent jurisdiction; exceptions
• Va. Code § 20-79, effect of divorce proceedings
• Va. Code § 16.1-260, intake; petition
• Va. Code § 16.1-262, form and content of petition
• Va. Code § 16.1-263, summonses
• Va. Code § 20-146.20, information to be submitted to court
• Va. Code § 16.1-266, counsel and guardian ad litem
• Va. Code § 16.1-278.15, custody or visitation, child or spousal support
• Va. Code § 16.1-296, appeals to circuit court
• Va. Code § 16.1-302, when hearings are private
• Va. Code § 20-124.3, best interests of the child
• Va. Code § 20-124.4, mediation
• Rules of Supreme Court of Virginia, Rules 2:1101 and 8:1 (full rules PDF)
• The Juvenile and Domestic Relations District Court (judiciary pamphlet)
• J&DR District Court Manual, Chapter 6, Juvenile Civil Procedures
• Virginia court self-help: custody, visitation and support