What happens when a judge enters a custody or visitation order that you are unsatisfied with? What are your next steps and what gives you the best chance of changing the next outcome?
If you are unsatisfied with a custody or visitation outcome in JDR court in Virginia, you must appeal the order within ten days of its entry by the Judge (i.e., the Judge that signs the order). After you file this appeal at the JDR clerk’s office within the ten-day limit, you will have a trial “de novo,” meaning there will be a completely new trial with a new judge in a new court – The Circuit Court, “upstairs.” In this circumstance, you have a clean slate to make your case again and potentially receive a different outcome.
Oftentimes, disappointed litigants work to appoint a new GAL (Guardian Ad Litem) Attorney – however, this is rarely granted in Virginia, outside clear negligence or legal error by the GAL.
However, if you do not file your appeal within the ten-day limit, you have lost your right to appeal your case. One situation in which this may become an issue is in the manner in which parties are notified of the filing of the custody or visitation order. Normally, the order will be filed and then the losing party will be notified by mail. However, by the time the mail arrives, it has already been more than 10 days from the order’s filing, and the court will not make an exception to file the appeal late because the mail was slow. In light of this reality, it is very important to tell the judge you need to know when the order is filed so you can file your appeal on time because courts will not allow an appeal after the ten-day mark. Consult with an attorney and call the clerk’s office early and often!
In Hill v. Hill, the father was unsatisfied with the juvenile custody and visitation order and wanted to appeal his case. He went to the clerk’s office to file his appeal, but the clerk mistakenly told him the judge’s order had not been filed yet, although it had. The father then received the judge’s order through the mail on the tenth day, and by this time it was too late to file his appeal in time. He then filed his appeal the next day, just one day outside of the ten-day limit.
In this situation, the clerk mistakenly told the father the order was not filed even though it was, the father received notice of the order’s filing through the mail on the tenth day, and the father filed his appeal on the eleventh day. Despite all these factors, the father still was not given an exception, and he lost his right to appeal his case. He could have hired a competent attorney to make sure it was filed on time.
Guardian Ad Litem
Additionally, many parties seek a new guardian ad litem for their children during the appeals process. This involves petitioning the court for removal of the current guardian ad litem, along with the reasons as to why they should be removed. These reasons can range from the guardian ad litem acting negligent, not showing up to meetings, or generally not representing the best interests of the child they are assigned. However, it is important to note judges rarely grant these requests without a strong reason for doing so.
As seen in Hill v. Hill, it is critical to file an appeal in response to a juvenile custody or visitation order as quickly as possible, but circumstances can arise that could lead to losing the right to appeal completely. It is important to have a law firm with experienced attorneys on your side that know what issues can arise when filing for an appeal so that every stage of the process is taken care of. The attorneys at Smith Strong, PLC are diligent in ensuring that all deadlines are met so that you have the best chance of prevailing in court.
Special thanks to law clerk Brayden Meadows for his editorial and drafting assistance with this article.