CENTRAL VIRGINIA LEGAL AID SOCIETY, INC. 1000 Preston Ave, Suite B 101 W Broad, Ste 101 2006 Wakefield Street Charlottesville, VA 22903 Richmond, VA 23241 Petersburg, VA 23805 434-296-8851 (Voice) 804-648-1012 (Voice) 804-862-1100 (Voice) 434-296-5731 (Fax) 804-649-8794 (Fax) 804-861-4311 (Fax) How to Take a Child Custody or Visitation Case to Court How does child custody or visitation get ordered by a court? Unless there’s a court custody order, both parents of a child have equal rights to physical possession of a child. This is true whether the parties are married to each other or not. Virginia law gives no preference to either the mother or the father. A court can order child custody and visitation only after four things happen: • Custody papers are filed with the court. • Custody papers are served (legally delivered) on all the parties. • A hearing is held before the court. • A written child custody or visitation order is issued. Who can file for child custody or visitation? A mother, father, legal guardian, and any “party with a legitimate interest” can file for child custody or visitation. A “party with a legitimate interest” includes, but is not limited to, grandparents, stepparents, former stepparents, blood relatives, and family members. After parental rights have been terminated (ended) by a court, that parent and that parent’s relatives have no custody or visitation rights with that child. Where do I file for child custody or visitation? It depends on whether there’s a prior court order about the child’s custody or visitation. If there is no prior court order, where do I file for child custody or visitation? If there is no prior court order about the same child’s custody or visitation, you would file in the state and county or city that has “jurisdiction” to hear the case. In Virginia, you would file with the Court Services Unit of the Juvenile and Domestic Relations (J&DR) Court. If the child and all the parties involved live in the same county or city, and have lived there for more than six months, you would file in that county’s or city’s J&DR Court. If this is not the case, you’ll need to follow the rules discussed below, which sometimes can be complicated. What is “jurisdiction”? Jurisdiction is the power or authority to hear and decide a legal case. In child custody and visitation cases, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) says which court has this power. What is the UCCJEA? Virginia and most other states have made the UCCJEA part of their laws. The UCCJEA determines which state gets to make the initial (first) child custody or visitation order. The UCCJEA also determines which state gets to change child custody or visitation after there is an order. There are two reasons a state gets to make the initial child custody or visitation order. • The court has “home state” jurisdiction. • The court has “significant connections” jurisdiction. What is “home state” jurisdiction? The “home state” is the state where the child last lived for six months in a row. If the child is less than six months of age, it is where the child was born. On the date the child custody or visitation case is filed, one of two things must be true. • The state is the child’s home state, or, • The state was the child’s home state within six months before the date the child custody case is filed and the child is absent from the state and a parent, or person acting as parent, still lives in that state. This means a state can be the child’s home state for six months after the child has left, as long as a parent, or person acting as parent, still lives in that state. What is “significant connections” jurisdiction? If there is no “home state” or if the “home state” has decided not to exercise jurisdiction, another state may have “significant connections” jurisdiction. On the date the child custody or visitation case is filed, two things must be true. • The child and at least one parent, or person acting as parent, has a significant connection with the state apart from mere physical presence, and, • Substantial evidence about the child’s care, protection, training and personal relationships can be gotten in the state. Under the UCCJEA, once there has been a child custody or visitation order entered by a judge, usually no other state may change that order. This is talked about later in this article. If there is no prior court order, what do I file for child custody or visitation? You would file a Petition for Custody and/or a Petition for Visitation. You file this with the Court Services Unit of the Juvenile and Domestic Relations (J&DR) Court. What does it cost to file a Petition for Custody or Petition for Visitation? The filing fee is $25 per petition per child. This applies only to a Petition for Custody, a Petition for Visitation, or a Petition for Relief of Custody filed by a Guardian (not Parent). It does not apply to any other J&DR Court petition or motion. It does not apply to these. • Petition for Child Support. • Petition for Spousal Support (alimony). • Petition for Emergency Protective Order, Preliminary Protective Order, or Permanent Protective Order. • Motion to Amend or Review Order. • Motion for Show Cause Summons. You may pay by cash, personal check, money order or credit card. You can’t pay in installments. What if I can’t afford the filing fee? If you can’t afford the filing fee, ask the Clerk for the “Affidavit in Support of Application for Proceeding in Custody or Visitation Cases without Payment of Filing Fees.” This also is called “Form DC-606.” The Affidavit asks for this information. • Whether you get Medicaid, Temporary Assistance for Needy Families (TANF), Supplemental Security Income (SSI), or Food Stamps. • Your take home pay and other income. • Your assets, such as money in a bank account, cash, homeownership, etc. • Unusual expenses, such as medical, court ordered child & spousal support & child care. • Number of people you support. • Number of people you live with. You must be a Virginia resident to file this form. You must file a separate form for each Petition. Only the Judge can grant your request to proceed without paying filing fees. The Judge must grant or deny your request within one business day. If you file more than one request, the Judge may grant some requests and deny others. If there is a prior court order, where do I file for child custody or visitation? Generally, you must file in the state and county or city that issued the last custody or visitation order. Under the UCCJEA, once there has been a child custody or visitation order, usually no other state may change that order. There is a limited exception to this rule. Another state may change the prior order if the new state has “home state” or “significant connections” jurisdiction and one of three things is true. • The court that issued the prior order determines it no longer has jurisdiction, or, • The court that issued the prior order determines the new state would be an easier place to hear the case, or, • The court that issued the prior order, or a court in the new state, determines that neither the child, the child’s parents, nor any person acting as a parent now lives in the state that issued the prior order. Where do I file if the prior court order is not from Virginia? Once a court in another state has issued a custody or visitation order – and the child, a parent, or a person acting as a parent still lives in the state – you must file in the same court that entered the prior order. This is true even if you live very far from that court. You may file in Virginia only if the child, all the child’s parents, and everyone acting as a parent, no longer lives in the state that issued the prior order. Where do I file if the prior court order is from Virginia? Generally, you must file in the Virginia court that issued the last custody or visitation order. This could be a Virginia J&DR Court. This also could be a Virginia Circuit Court. If the prior court order is from a Virginia Circuit Court, where do I file? This depends on what the prior Virginia Circuit Court order says. If the order refers or transfers back the issue of custody and visitation to a Virginia J&DR Court, you would file in the J&DR Court. Otherwise, you would have to file in the Circuit Court one of two things. • A Motion to Amend or Review Order or • A Motion to Transfer to J&DR Court. You may be able to do this without a lawyer, but it is not recommended. You may lose valuable custody or visitation rights if you don’t know the law. You probably will need a lawyer to file in Circuit Court. Procedures in the Circuit Court are complicated. If the prior court order is from, or referred back to, a Virginia J&DR Court, where do I file? You would file in that J&DR Court. If the prior court order is from, or referred back to, a Virginia J&DR Court, what do I file? You would file a Motion to Amend or Review Order. You file this with the Clerk’s office of the Juvenile and Domestic Relations (J&DR) Court.