How to Lock in Your Custody Agreement and Avoid an Appeal
The juvenile and domestic relations district courts (“J&DR courts”) in the Commonwealth of Virginia have jurisdiction over cases to determine child custody and visitation. While this jurisdiction is “concurrent” with the circuit courts (meaning either court can hear such a case), a vast majority of custody disputes begin—and end—in J&DR courts. Parties to custody cases before a J&DR court do retain the automatic right to appeal any decision to the circuit court for a brand new trial, meaning that parents could potentially have to go through a complete custody trial not once, but twice, before being able to move on with their lives.
This reason is one among many that could lead parties to resolve a custody battle through a negotiated agreement. But the last thing a parent wants to face is the other parent backing out of an agreed-upon custody arrangement, causing the parties to wind up in court all over again. If the parties are not careful in how their agreement is presented to the court, however, one parent’s cold feet could cause that to happen.
In Virginia, the automatic right to appeal a J&DR court decision to circuit court is extremely broad. Virginia Code Section 16.1-296 states that “[f]rom any final order or judgment of the juvenile court…an appeal may be taken.” The Virginia Court of Appeals has interpreted this to include any court order, whether it was the product of litigation or negotiation.
The right to appeal lasts for ten days from the entry of an order. So, a party to a custody agreement that is incorporated into a J&DR court order has up to ten days from entry of that order to appeal.
While this window to back out of an agreement is small, the parties can remove the risk entirely through the terms of their agreement. The right to appeal a J&DR court decision to circuit court, like many other rights, can be waived by the parties.
By waiving their mutual rights to appeal, parties to a custody agreement can ensure that neither of them will renege on what they have decided is best for their children—and thereby remove the risk of re-fighting the same custody battle immediately.
An important distinction to remember is that any custody or visitation decision—whether reached by a judge or by the parents themselves—is subject to modification based on any material change in circumstances, where changing custody would be in the child’s best interests. Because issues of child custody and visitation are of strong public concern, the public policy of protecting the best interests of children will override any agreement to not seek future custody modifications. In short, you may agree to be fully bound to the terms of an agreed custody order, but only as long as that order remains in the best interests of the child.
The child custody attorneys of Livesay & Myers have extensive experience litigating and negotiating custody and visitation cases. From offices in Fredericksburg, Fairfax and Manassas, we assist clients throughout Northern Virginia. Contact us today to schedule a consultation.