In some instances, married individuals may file petitions for custody, visitation or support in J&DR court, even if they intend to ultimately seek a divorce in circuit court. In many cases, neither individual of the married couple has grounds to file for divorce in Virginia, but still needs a determination made regarding custody, visitation and support issues until such time as they can proceed with a divorce.
There is a process, however, whereby a litigant in J&DR court may move the case to circuit court. This process is called divesting jurisdiction. Pursuant to Virginia Code § 16.1-244, in order to divest a J&DR court of jurisdiction, either party must file a complaint for divorce in circuit court (assuming that party has grounds for filing). The complaint must raise issues of custody, guardianship, visitation, child support or spousal support. In addition, the party filing the complaint must set a motion to be heard on a date certain or on a motions docket within 21 days of the date that the complaint was filed. The motion filed can be a pendente lite motion (motion for a temporary determination pending the litigation), and must raise similar issues to that of the complaint, including those of custody, visitation and support.
Once the above steps are followed, the J&DR court is divested of jurisdiction and cannot enter any further orders regarding custody, guardianship, visitation, or support. However, if the J&DR court has already entered an order, that order remains in effect until the circuit court enters a conflicting order.
In many cases, a party may seek to divest jurisdiction of the J&DR court in order to have a determination made of all issues pertaining to a divorce in one forum, rather than having the J&DR court decide some issues, only to have to resort to additional litigation in the circuit court of the same issues. In other instances, a party may divest jurisdiction of the J&DR court in order to prevent an imminent hearing from moving forward on a scheduled date, potentially leaving both parties in the position of having to endure a prolonged litigation process. Regardless, for cases pending in the J&DR court between married individuals, the parties certainly want to be aware of the possibility of divestiture.
If you need assistance with a divorce, custody, visitation or support case in Northern Virginia, the family lawyers at Livesay & Myers, P.C. can help. Our attorneys handle matters in both J&DR courts and circuit courts across Northern Virginia, and are well-versed in the process of divestiture. Contact us to schedule a consultation today.