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Tatiana Mendez, Esq.

Can We Appeal A Final Custody Order?

In Virginia, both parties have an absolute right to appeal any final order of a judge in the Juvenile and Domestic Relations Court (JDR). The appealing party has to note their appeal within ten days from the date of the final order being entered. A new trial will be scheduled in the Circuit Court for the case to be tried again. This is called a de novo appeal, which means the case starts over again from the beginning, without consideration for any rulings, evidentiary decisions, or anything else that happened in the trial in the JDR.

While the appeal is pending, the order entered in JDR remains in effect until the Circuit Court case is finalized. The parties still have to abide by the order from JDR until the Circuit Court orders otherwise.

What Factors Must Be Present For A Modification To A Custody Or Visitation Arrangement To Be Considered Or Granted In Virginia?

If it has been over ten days since the Juvenile and Domestic Relations Court order was entered, you are no longer able to appeal the order, but may still be able to modify it with a motion to amend in JDR. In order to modify your custody or visitation agreement in Virginia, you have to prove, first, that there’s been a material change in circumstances since the last order was entered and, second, that a change would be in the best interest of the children.

What qualifies as a material change in circumstances depends on the specific facts of any given case. Some examples of possible changes would be a parent has relocated, a parent has remarried or had another child, a parent has repeatedly and unreasonably withheld visitation from the other parent, or the child’s needs have changed. You could, for example, have an order that was entered when the child was a newborn and breastfeeding and attached to one parent for many months; then, that child starts school and the schedule no longer makes sense for the child or for the parents.

The court will consider whether there is anything that warrants changing the order in the first place, and then once they’ve determined that there has been a material change, the next step is to determine whether modifying the order would be in the child’s best interest, which involves the factors that we discussed previously.

Another way to modify an order is through an agreement between the parties. If all parties agree, then there’s no need for a trial and no need to prove material change or that the change is in the child’s best interest. The parties can simply ask the court to enter the new order with their agreed changes.

When Is A Guardian Ad Litem Appointed In Family Court? What Duties Do They Have To The Child?

A guardian ad litem in Virginia is an attorney appointed by the court to represent the best interests of the children. Overall, the guardian ad litem (GAL) is responsible for conducting an independent investigation into the facts of the case, meeting with the children, and being an active participant in the custody and visitation proceedings. The very first duty a GAL has is to establish a relationship with the child. They’re required to meet face-to-face with the child and then determine what the child’s wishes are, along with the safety and adequacy of the child’s current placement. The GAL decides if there is any need for further testing or evaluation or if the court needs to temporarily intervene with a temporary order or something else while the trial is pending.

Obviously, the GAL’s interactions with the child will take into consideration the child’s age and maturity level, as well as the circumstances surrounding a specific case. The GAL generally will do a home visit at each home and speak to the parties and to other important people in the child’s life in order to get a big picture of what the child’s life looks like and how the child is doing. It’s not uncommon for them to speak to neighbors, friends, or extended family members, as well as counsellors, teachers, and anyone else the child regularly interacts with.

In court, the GAL’s recommendation can hold a lot of weight, which makes perfect sense considering all of the background work the GAL is supposed to do in order to make such a recommendation. For that reason, I usually recommend that my clients treat the GAL like gold. This person can make or break a case, and it’s absolutely necessary to treat them with respect and avoid doing anything that will cause them to have a negative opinion of you.

It’s important to keep the factors regarding the best interest of the child in mind during any interaction with the GAL because that’s precisely what their recommendation will consist of. It’s common for GAL reports to list the factors outright and then put each relevant fact under the qualifying factor. A common mistake that people make is attempting to cast the other party in a negative light to the GAL. Don’t forget, one of the factors is each party’s willingness and ability to co-parent and resolve disputes with the other parent. You don’t have to like the other parent, but your feelings about them are completely irrelevant. What really matters are the facts and how you’re living your day-to-day life dealing with this other person.

I am a certified guardian ad litem, and I’ve found in my experience that the way that parties speak about the other party can be very telling. During one of my home visits in one particular case, I was sitting in the father’s living room when he started to go down a laundry list of things he did not like about the child’s mother. The kid was sitting right there on the couch between her father and the grandmother playing a videogame. It was the grandma who got up and removed the child from the room, saying, “I don’t think it is appropriate for her to be listening.” I don’t remember what the father said about the mother in that situation, but the fact that he was so comfortable making disparaging remarks about the mother right there in front of the child said a lot. It was something I mentioned in my report to the court.

It’s definitely a better use of your time with the guardian ad litem to tell them all of the amazing things about your own parenting and how well the child is doing under your care or because of your interactions with them. It’s perfectly fine to express concerns about the other parent, but it’s crucial to make sure the concerns are based in fact and definitely to avoid expressing those concerns within earshot of the child.

For more information on Family Law in Virginia, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (757) 289-2499 today.

 Tatiana Mendez, Esq.

Call Us Now For A Personalized Case Evaluation
(757) 289-2499