What to Expect at a Virginia Custody Hearing and Appeal

Before the hearing

• Witnesses and records. Requests for witness subpoenas should be filed at least 10 days before the hearing, and requests for subpoenas for records at least 15 days before (Rule 8:13). See the evidence guide.
• Continuances. Continuances should be granted only by a judge for good cause shown, unless otherwise provided by law (Rule 8:14(a)). If all parties agree, one party may ask orally after certifying that the others know and concur, and the requesting party must make sure subpoenaed witnesses get the new date (Rule 8:14(b)). A request not agreed to should be made before the hearing date (Rule 8:14(c)), and a request made for the first time at the hearing, with others present and prepared, should be granted only if going forward would not be in the best interest of justice (Rule 8:14(d)).
• Hiring a lawyer. The judiciary’s J&DR pamphlet says a party who wants to hire a lawyer and has reasonably been unable to do so must file a motion for a continuance before the court date.
• Parent education. In a contested case, bring proof that you attended an approved seminar in the last 12 months, or that you will attend within 45 days (§ 16.1-278.15(A)).

At the hearing

• Who is in the room. The general public is excluded from J&DR hearings, and only persons the judge deems proper are admitted (§ 16.1-302(C)).
• Court reporter. Any party has the right to have a court reporter present to take down or record the proceedings. In a proceeding closed to the public, a party is entitled to obtain the transcript without a court order, though the court may limit its circulation (Rule 8:11).
• Witnesses outside. On a party’s motion the court must exclude witnesses from the courtroom, but each individual named party may stay (Rule 2:615(a)).
• The child’s interests. The court may appoint a guardian ad litem for the child, but not where each person claiming custody has a lawyer, unless it finds the child’s interests are not otherwise adequately represented (§ 16.1-266(F)).

The decision and the order

The judge must communicate the basis of the decision to the parties orally or in writing, and except for consent orders, set out findings on the relevant factors (§ 20-124.3). The J&DR District Court Manual says Form DC-573, Order for Custody/Parenting Time/Visitation Order Granted to Individual(s), was developed to record the order. Every custody or visitation order includes the 30-day notice of relocation condition unless the court orders otherwise for good cause (§ 20-124.5).

Drafts of orders prepared by a party must be endorsed by all counsel of record, which includes a party appearing pro se, or served on them with reasonable notice of when the draft will be presented, unless the court modifies the requirement (Rules 8:2 and 8:19).

Appealing a J&DR order

• Deadline. An appeal from a final J&DR order goes to the circuit court within 10 days from entry of the order (§ 16.1-296(A)). It must be noted in writing and is noted only when the writing is timely received in the clerk’s office (Rule 8:20). The appealing party serves a copy of the notice of appeal on the other party consistent with Rule 1:12.
• Costs. In a custody or visitation matter where the $25 filing fee was or could have been charged, no appeal is allowed unless, within the same 10 days, the appellant pays the circuit court writ tax and other costs or files a petition to proceed without them on account of poverty (§ 16.1-296.2(A)). The writ tax is assessed once for all custody and visitation petitions appealed together by one appellant.
• A new hearing. The circuit court hears the case de novo, without a jury, though the judge may allow an advisory jury on a party’s motion (§ 16.1-296(A) and (F)).
• The order stays in effect. A pending appeal does not suspend an order pertaining to a child’s custody or visitation unless a circuit court judge orders otherwise or an appellate court directs it by writ of supersedeas (§ 16.1-298(B)).
• Withdrawing. Before the appeal is perfected by posting any required bond or paying required costs, it can be withdrawn by filing a written notice of intent to withdraw in the district court and serving it in person or by first-class mail on all parties. The J&DR order then has the same effect as if no appeal had been noted (§ 16.1-106.1(A)(1)). After that point, withdrawal is requested in the circuit court.

Appealing from circuit court

Unless otherwise provided by law, an aggrieved party may appeal a final judgment, order, or decree of a circuit court in a civil matter to the Court of Appeals of Virginia (§ 17.1-405(A)(3)). The notice of appeal must be filed with the clerk of the trial court within 30 days after entry of the final judgment, unless a statute provides otherwise or the Court of Appeals grants an extension under its rules (Rule 5A:6(a)).

Primary sources

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

• Rules of Supreme Court of Virginia, Rules 1:12, 2:615, 5A:6, 8:2, 8:11, 8:13, 8:14, 8:19 and 8:20 (full rules PDF)
• Va. Code § 16.1-302, when hearings are private
• Va. Code § 16.1-266, guardian ad litem
• Va. Code § 16.1-278.15, parent education
• Va. Code § 20-124.3, best interests; findings
• Va. Code § 20-124.5, notification of relocation
• Va. Code § 16.1-296, appeals to circuit court
• Va. Code § 16.1-296.2, appeals of custody and visitation proceedings
• Va. Code § 16.1-298, effect of pending appeal
• Va. Code § 17.1-405, Court of Appeals jurisdiction
• Va. Code § 16.1-106.1, withdrawal of appeal
• J&DR District Court Manual, Chapter 6 (custody trial and appeals)
• The Juvenile and Domestic Relations District Court (judiciary pamphlet)