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.

If you are unhappy with a child custody decision handed down by a Virginia court, you can either appeal that decision or seek a modification of the order itself.

However, before you can appeal or modify your custody order, it’s important to understand the basics of what your custody order actually does.

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 Do Virginia Courts 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 may have 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 court, you have two options to remedy the situation.

First, you can appeal the court’s decision to a higher court. Second, you can seek a modification of the order itself. 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.

On the other hand, modifying an existing custody order can be an uphill battle.

This is especially true because judges usually only modify custody orders after a material change in the circumstances of the order.

For example, a court may choose to modify an order if one parent gets married or moves to another state.

How to Appeal a Custody Order in Virginia

Kids playing with friends around a tree in the park.

Essentially, your appeals process will largely depend on which court heard your original custody 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, for instance, your appeal will go up to your local Circuit Court.

In this scenario, you must make the appeal within ten days of the final decision in the Juvenile and Domestic Relations Court.

After you have filed your request in writing to the clerk of the JDR court that original heard your case, the Circuit Court will hear your case de novo.

This means that the court will re-do your entire case from scratch, meaning you get a brand new trial.

Until the Circuit Court makes a decision, however, the original custody order will remain in effect.

Generally, your new trial will take place 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 the 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.

Appealing a Decision from a Circuit Court

On the other hand, appealing a decision from a Circuit Court can be a bit more tricky.

In this scenario, you must appeal to the Virginia Court of Appeals.

To start this process, you must note your appeal with the court that rendered the custody decision (the Circuit Court) within 30 days of the entry of final judgement.

Note that this will not be a de novo trial.

The Virginia Court of Appeals generally doesn’t deal in fact-finding but, rather, in how the law itself applies to your case.

Put another way, your strategy will be entirely different, and you cannot present new evidence or arguments in your case.

The Court of Appeals will also apply a presumption that the Circuit Court’s decision was correct, so you will have the burden of proving that it wasn’t.

How to Modify a Custody Order in Virginia

The hands of women who are writing books on various documents on the desk,reviewing the correctness before proposing in the next step.

If you miss the window to appeal, there are still several options available to you.

For example, you can always petition the court for a modification of the custody agreement.

However, the success of your petition will largely depend on whether or not you can prove a material change in the circumstances of the original order.

Essentially, in order to modify an existing custody order, you must show that there has been a material change in the circumstances of the case from when the original order was issued, and that the modification is in the child’s best interests.

For this reason, changes in employment, remarriage, serious health issues, or even the preference of the child are common sources of custody order modifications.

As an additional example, let’s assume for a moment that you and your co-parent are able to come to an agreement about parenting time after the creation of the custody order.

This change in circumstances might prove sufficient for a change in the order itself, since you and the other parent are no longer battling over custody.

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.

The bottom-line question you should always ask yourself is whether an appeal is in the best interest of your child, as this is the standard a Virginia court will apply as well.

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.


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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