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.

Last updated on April 30th, 2019

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 or get divorced, the parents will have to make decisions regarding the custody of any shared minor children.

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 decide who receives custody of the child.

In this article, we’ll briefly cover the basics of custody in Virginia. We’ll also discuss the how and the why of appealing such an order.

How Does the Juvenile and Domestic Relations Court Determine Custody?

Mother and daughter camping outside with tent, custody concept.

If you and your spouse are unable to come to an agreement in regards to custody of your minor children, a judge from your local Juvenile and Domestic Relations Court will be forced to intervene.

The judge will consider all of the following topics when measuring the best interests of your 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.

Essentially, when deciding who will receive custody over a minor child, the judge will take all of these factors, and more, into account.

What happens if I don’t agree with with the Court’s decision?

If you disagree with the final custody decision provided by the Juvenile and Domestic Relations Judge, you may appeal that decision to a higher court.

An appeal is a 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.

How to Appeal a Custody Order in Virginia

Kids playing with friends around a tree in the park.

The first step in appealing 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.

There are actually several different levels of courts in Virginia, ranging from the local to state level. When you appeal a decision in a Juvenile and Domestic Relations Court, your appeal will go up to your local Circuit Court

You must make the appeal within ten days of the final decision in the Juvenile and Domestic Relations Court. As long as you file the paperwork within ten days of the court’s decision, you can appeal a Virginia custody order.

After you have filed your request in writing to the clerk, your case will be heard de novo by the Circuit Court.

This means that the court will re-hear your entire case from scratch. Once the Circuit Court judge has heard your entire case, they can choose to either uphold or change the previous decision.

Generally, this will happen within 90 days of the date you filed your appeal.

What happens during and after the hearing?

This hearing itself will essentially work the same way as your hearing in the lower court. However, since the judge is trying your case de novo you can choose a different strategy or show further evidence of why the lower court’s decision was incorrect.

After the Circuit Court renders its final decision, the Circuit Court will file a copy of its judgment with the Juvenile and Domestic Relations Court within twenty-one days of entry of its order.

Once the judgment of the Circuit Court reaches the Juvenile and Domestic Relations Court, their judgment becomes the ruling of the Juvenile Court.

Is it Worthwhile to Appeal a Virginia Custody Order?

young woman at the coffee shop reading a document, child custody

The appellate process is long, expensive, and not always successful. For this reason, you should always ask yourself whether or not it’s worth it to file an appeal.

While this is a personal decision you need to make on your own, there are several important things you should consider before deciding to appeal a Virginia custody order.

As a few of the most common points you should think over:

  • First, ask yourself the following question. Are you appealing the case because you feel it is unfair to your child? Or are you appealing because you’re not happy with the result?
  • Remember that Juvenile and Domestic Relations Judges are far more experienced in resolving family matter than judges in the Circuit Court. For this reason, the result of your appeal may be very different than what you expect.
  • The appeals process is very expensive. If you are appealing for a frivolous reason, or to get back at your co-parent, the judge will likely not take kindly to your appeal.

For these reasons and others, you should always discuss your options with your original custody attorney before choosing to file an appeal.

Alternatives to Courtroom Child Custody Battles and Appeals

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 also a few cheaper and less time-consuming alternatives available. This is especially true if you can come to an agreement with your co-parent about specific custody issues.

For this reason, the best alternative may be to avoid the courtroom battle altogether.

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

Father celebrating with daughter after lengthy child custody battle.

Ultimately, your fight for child custody does not end in a Juvenile and Domestic Relations Court. If you disagree with the court’s decision, you may appeal that decision in your local Circuit Court.

In order to successfully appeal a Virginia custody order, having an experienced family law attorney by your side is highly recommended.

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