Virginia Custody Process in Circuit Court (Divorce Court)

Typically, divorcing parents get court orders for custody, parenting time and child support in their Circuit Court divorce case.

Alternatively, they can choose to handle those issues in Juvenile and Domestic Relations District Court (J&DR) separately from the divorce. Parents often do this when they can't agree on how to handle custody during the separation period required for a no-fault divorce.

If you're taking the Circuit Court route, follow the steps below. At any point in the process, you can agree with the other parent to settle your case.

Ideally, you should hire a lawyer to help you through the entire process. If you can't afford a lawyer, you may be eligible for free or low-cost legal assistance.

Step 1: Separating

If you're filing a fault-based divorce, skip this step.

To file a no-fault divorce, parents must first live apart for one year. (If neither parent can move out, it's possible to prove separation while living under the same roof.)

Parents must prove the date they separated, and the plaintiff (whoever opens the case) must provide a corroborating witness to verify the date and other facts. Decide now who to ask — someone who's known you and your spouse since before the separation and has firsthand knowledge of it.

Experts recommend creating a separation agreement to manage custody, parenting time, child support and other issues throughout the separation period. Once the year is up, parents can submit the agreement to Circuit Court to file for an uncontested divorce.

Step 2: Filing your case

File your case in your local Circuit Court.

You can file a fault-based divorce (with evidence of the fault) at any time. For a no-fault divorce, the soonest you can file is one year and a day after your documented separation date.

If you can't agree with the other parent on custody and parenting time for the duration of your case, include a motion for temporary orders.

Formally notify the other parent that you've opened a case by serving them copies of your initial paperwork. They have 21 days to file a response with the court.

If the other parent files a response that disagrees with your requests, your case is contested. Continue with the steps below.

If your case is uncontested, move on to the settlement process.

Step 3: Discovery (continues throughout)

Typically lasting months, discovery is a legal process in which parents exchange personal information and the evidence they're preparing for trial. Discovery continues until the final weeks before trial.

Parents must share financial documents, all evidence and a list of witnesses.

You may have your attorney depose the other parent's witnesses (question them under oath for the court record), and the other parent's attorney can depose your witnesses. Parents who don't have an attorney can conduct depositions themselves.

Failure to comply with your court's discovery requirements or the other parent's requests can delay your case and be considered contempt of court.

Step 4: Parent education seminar

All parents in contested custody cases must complete an education seminar before the end of their case. Take it early on so you don't run into problems.

The seminar covers co-parenting, dispute resolution and how separation affects children. Take the four-hour class in person or online from an approved provider, and submit proof of completion to the court. You don't have to attend with the other parent.

Possible: Motion hearings

The court may hold hearings to order evaluations, to appoint a guardian ad litem (GAL) who represents children in court, or to address other motions filed by parents.

If either parent files a motion for temporary custody, the court holds a hearing early on that's sometimes called a pendente lite hearing. There, both parents present arguments and evidence, and the judge issues temporary orders that the parents must follow until the case has final orders.

In some counties, a commissioner in chancery may oversee your hearings. This is essentially a court referee, whose decisions must be finalized by a judge.

Possible: Investigation or evaluation

Not all cases require an investigation or evaluation.

If a GAL is appointed, they conduct an investigation of the parents' homes and relationships with the children. If child abuse is alleged or suspected, Child Protective Services may investigate instead of or in addition to a GAL.

When parents challenge each other's ability to meet the children's best interests, the judge may order an evaluation so an expert can assess the case and make recommendations to the court for custody and parenting time.

Step 5: Trial scheduling

In some courts, trials get scheduled automatically. More often, the plaintiff (or their lawyer) contacts the court clerk for available dates once parents are nearing readiness for trial.

How long you'll wait for trial varies. Courts are busy, especially in larger counties and cities, where trials are usually scheduled more than six months out. Smaller courts typically have shorter wait times.

The trial date sets the timeline for the rest of the case. When it's set, the plaintiff schedules a judicial settlement conference (or mediation) and a pre-trial conference.

Step 6: Judicial settlement conference or mediation

Some courts require parents to attend a judicial settlement conference at least 30 days before trial (unless the case involves domestic violence). This is a confidential meeting with both parents, their lawyers and a retired judge. The judge explains how the case is likely to play out in trial, which often helps parents reach a settlement.

When the court orders a judicial settlement conference, parents can choose to use private mediation instead.

When the court doesn't require a judicial settlement conference, parents can request one or hire a private mediator.

Step 7: Pre-trial conference

If you don't settle in a judicial settlement conference or in mediation, you'll have a pre-trial conference at least a week before trial.

At this conference, parents and their lawyers meet with the trial judge to discuss procedures and make one last attempt to settle.

Step 8: Trial

Any issues parents still can't agree on are decided in a trial by the judge (or, less commonly, by a commissioner in chancery).

To support their requests, parents or their lawyers present evidence and question witnesses. The plaintiff's corroborating witness must testify about the basic facts of the case.

The judge considers parents' arguments along with the results of investigations or evaluations. They may announce their decisions immediately, or they may first call a recess (break) for hours, days or even weeks.

After announcing their rulings, the judge asks one of the lawyers or the guardian ad litem to draft the final orders. If neither parent has an attorney and there's no GAL, the court writes the orders.

Some counties, such as Fairfax, hold separate trials for custody and divorce issues. In this case, you would have a custody trial first and then another trial to finalize your divorce a month or so later.

Throughout the case

During the custody process, you may need to create a parenting time schedule, write a parenting plan, keep a log of interactions with the other parent, and more.

The Custody X Change app enables you to do all of this in one place.

With parenting time calendars, a parenting plan template, a digital journal and more, Custody X Change makes sure you're prepared for whatever arises in your journey to child custody.

Throughout your case, take advantage of our technology to stay on top of all the moving parts.