How to Appeal a Virginia Custody Order

An appeal is the legal process where a higher court reviews the decision of a lower court. Before you appeal a Virginia custody order, it’s important to understand the appellate process.

What is a Virginia Custody Order?

Before you can appeal a Virginia custody order, it is important to understand the basics of custody orders in Virginia. When two parents decide to separate and get divorced, the parents will have to make decisions on the custody arrangement of any minor children between the couple.

In some instances, the couple is able to come to an agreement about custody and visitation rights in a child custody agreement. However, if the parents are unable to come to an agreement on custody and visitation arrangements, then a Virginia juvenile and domestic relations court may have to intervene.

In this event the juvenile and domestic relations court judge will have to make the decision on child custody. A child custody order is where a juvenile and domestic relations court judge determines the custody, parental rights, and visitation rights parents will have with any minor children.

How does a Juvenile and Domestic Relations Court determine custody?

If you and your spouse are unable to come to an agreement in regards to custody of your minor children, a juvenile and domestic relations court will be forced to intervene. A Virginia juvenile and domestic relations court determines child custody by determining the best interests of the child. [1]

The court considers the following when measuring the best interests of the child:

  1. The age and physical and mental condition of the child, with consideration given to the child’s developmental needs;
  2. The age and physical and mental condition of the parent;
  3. The relationship existing between each parent and child, with consideration given to the positive involvement in the child’s life, the ability to accurately assess and meet the emotional, intellectual, and physical needs of the child;
  4. The needs of the child, giving consideration to other important relationships of the child such as siblings, peers, and extended family members;
  5. The role the parent has played and will play in the future, in the upbringing and care of the child;
  6. The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;
  7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;
  8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;
  9. Any history of family or sexual abuse.
  10. Such other factors as the court deems necessary and proper to the determination. [2]

What happens if I am displeased with a Court’s Decision?

Your fight for child custody does not end with the decision of a juvenile and domestic relations court judge. If you received an unpleasant decision from your local juvenile and domestic relations court and are dissatisfied with the outcome of your case, you may not be out of options. In Virginia you have the ability to appeal a Virginia custody order.

An appeal is the legal process where a higher court reviews the decision of a lower court. The appellate process serves to correct any errors on the part of the lower courts judgments and clarify any law that the lower court may have misinterpreted. In the United States, you are entitled to an appeal of the lower court’s decision. However, before you appeal a Virginia custody order, it is important to understand the hierarchy of Virginia Courts.

Virginia Court Hierarchy

Virginia Circuit Court

In order to appeal a Virginia custody order, the first step is to appeal to the circuit court. Any decision that is reached by your local juvenile and domestic relations court can be appealed to the circuit court. [3]

However, in order to appeal a Virginia custody order, you must make the appeal within ten days after the juvenile and domestic relations court has made a decision on your case. [4] As long as the paperwork is filed within ten days after the decision, you can appeal a Virginia custody order.

Because the circuit court will automatically hear your case, there need not be any legal errors at this point in the appellate process. When you appeal a Virginia custody order to the circuit court, your appeal is heard de novo. [5] This means that when you appeal a Virginia custody order in the circuit court, the court will re-hear your entire case. Once the court has heard your entire case the circuit court will make its own decision about the outcome.

After the circuit court renders its final decision, the circuit court shall cause a copy of its judgement to be filed with the juvenile and domestic relations court within twenty-one days of entry of its order. [6] Once the judgement of the circuit court reaches the juvenile and domestic relations court, their judgement becomes the ruling of the juvenile court. [7]

In most instances, when you appeal a Virginia custody order this is where the appellate process will end. However, if the circuit court commits a legal error that can be reviewed, then you may be able to appeal a Virginia custody order to the next highest court in Virginia.

Virginia Court of Appeals

If you are dissatisfied with the circuit court’s decision, you are not entirely out of options. The next highest court in the Virginia hierarchy is the Virginia Court of Appeals.

If you believe the circuit court made a mistake in your decision, you can appeal a Virginia Custody order by filing an appeal with the Virginia Court of Appeals. In order to appeal a Virginia custody order to the Court of Appeals, you must make the appeal within thirty days after the circuit court’s ruling.

When you appeal a Virginia custody order to the Court of Appeals, the appellate process is different than the circuit court. The biggest difference is that the Virginia Court of Appeals will not automatically review your case.

The Virginia Court of Appeals will only agree to hear your appeal if there are legal errors in the circuit court’s ruling. So if you appeal a Virginia custody order to the Virginia Court of Appeals your entire case will not necessarily be re-heard.

Virginia Supreme Court

In Virginia, your final option to appeal a Virginia custody order would be to the file an appeal with the Virginia Supreme Court. In order to appeal a Virginia custody order to the Virginia Supreme Court you have to file petition for appeal with the clerk of the court and request for your case to be heard.

The decision whether your case will be heard by the Virginia Supreme Court is made at the court’s discretion. In order for your case to be heard by the Virginia Supreme Court there must be something unique about your case or your case must have some sort of precedential value.

Because the court’s decision to hear a case is discretionary, it is unlikely that the Virginia Supreme Court will choose to hear your custody case. However, in rare instances the court will hear an appeal of a custody order if there is something of unique precedential value about the situation.

How to Appeal a Virginia Custody Order

Now that you understand the hierarchy of courts in Virginia, you can focus on the appellate process. The first step necessary to appeal a Virginia custody order is to file the appeal in writing with the clerk of the juvenile and domestic relations court that heard your case.

Since the first court you are appealing to would be the circuit court, you must file the appeal within ten days of the court’s decision. [8] It is important to remember you can only appeal a Virginia custody order if it is the final decision by the juvenile and domestic relations court. [9]

Procedure of the Appeal

After you have filed your request in writing to the clerk, your case will be heard de novo by the circuit court. [10] This means that your entire case will be re-heard by the circuit court.

When you appeal a Virginia custody order, your case will be heard by a circuit court judge within 90 days of your written request for the appeal. [11] Your appeal will be heard by a circuit court judge and is not heard by a jury.

Is it worth it to Appeal a Virginia Custody Order?

The appellate process is long, expensive, and not always successful. A question that anyone considering the appellate process needs to think about is whether it is worth it to appeal. While this is a personal decision you must make, there are some important things that you should consider before deciding to appeal a Virginia custody order.

The appeal process is expensive. When you appeal a Virginia custody order to the circuit court you are essentially having a whole new trial to decide custody. The costs of this proceeding can include additional legal and court costs which can be expensive.

Additionally, when you appeal a Virginia custody order you are not guaranteed success. Some appeals are more likely to succeed then others. It is important to discuss the possibility of success with an experienced family law attorney before you invest more time and money into your case.

Alternatives to Courtroom Child Custody Battles

When you appeal a Virginia custody order, you essentially are going through a child custody trial not once, but twice. This means that you are spending a lot of time and money on various court related costs. The appellate process can certainly be beneficial for some parties, however there are cheaper and less time consuming alternatives if you can come to an agreement with your former significant other.

The best alternative may be to avoid the courtroom battle all together. Parties can do this by negotiating and agreeing to a child custody agreement. By creating a comprehensive child custody agreement, the parents of the minor children make all the important decisions instead of judge.

A child custody agreement has the ability to save you months of time and thousands of dollars in legal costs. If you can come to an agreement with your spouse then a child custody agreement may be a better alternative for all parties by avoiding grueling courtroom battles.

Conclusion

Ultimately, your fight for child custody does not end in a juvenile and domestic relations court. If a juvenile and domestic relations court has rendered a decision to your dissatisfaction, you are entitled to an appeal.

In order to successfully appeal a Virginia custody order, having an experienced family law attorney by your side is highly recommended. Ultimately, having an experienced attorney by your side can best serve to protect the things most important to you.


[1] Va. Code § 20-124.3

[2] Id.

[3] Va. Code § 16.1-296

[4] Id.

[5] Id.

[6]  Va. Code § 16.1-297

[7] Id.

[8] Va. Code § 16.1-296

[9] Id.

[10] Id.

[11] Id.

Need an attorney?

Our articles provide general information about all of our practice areas. If you're looking for legal counsel specific to your situation, you'll need to talk to a lawyer.

Share This