Custody disputes can be very contentious and it is often the case that at least one of the parents is dissatisfied with the court’s decision once all is said and done. However, the dissatisfied party can take some solace in knowing there is additional recourse available to them. That recourse is to appeal the decision of the court that entered the custody and visitation order to a higher court. The process for appealing a custody and visitation order in Virginia differs based on whether the order was entered by a juvenile and domestic relations court (“J&DR court”) or circuit court.
Appealing a J&DR Court Custody and Visitation Order
In the event your custody and visitation order was entered by a Virginia J&DR court, you have the automatic right and option to appeal the order to circuit court. See Virginia Code § 16.1-296(A). The right to appeal to circuit court must be exercised within ten (10) days of entry of the J&DR court order. This means you must file the requisite written paperwork noting your appeal with the clerk of the J&DR court no later than ten (10) days from the J&DR court judge’s ruling.
This right to an appeal is automatic in the sense that the circuit court is required to accept the case, whereas an appeal to the Virginia Court of Appeals (discussed below) from the circuit court is discretionary. You will not be required to reference any legal errors made in the initial ruling as the circuit court will hear your appeal “de novo.” This means that the circuit court will hear the entire case all over again without deferring to the decisions or findings of the J&DR court. At the time you walk in to the circuit court to have your appeal heard, it is as if the J&DR court order was never entered and the circuit court will decide the matter all over again. Once the circuit court enters a new custody and visitation order, it replaces the J&DR court order and the circuit court has twenty-one (21) days from entry of its order to file a copy with the J&DR court. See Virginia Code § 16.1-297.
Appealing a Circuit Court Custody and Visitation Order
In the event your custody and visitation order was entered by a Virginia circuit court as part of a divorce proceeding, or you are unhappy with the decision the circuit court made in an appeal from J&DR court, you have the option to appeal the circuit court’s order to the Virginia Court of Appeals. It is important to note that unlike with an appeal from J&DR court to circuit court, an appeal from circuit court to the Court of Appeals is not automatic and can only be pursued in limited situations. The Virginia Court of Appeals has the discretion to decide which cases will be heard on appeal, and it limits those cases to ones where the circuit court has made, or is alleged to have made, some legal error(s) in its ruling. This means that unlike an appeal to circuit court, an appeal to the Virginia Court of Appeals will only be heard with respect to the particular legal errors alleged. It will not be heard de novo.
Should you and your attorney conclude that a legal error was made by the circuit court in its ruling and that you wish to appeal, you must note your appeal by filing it in the Virginia Court of Appeals no later than thirty (30) days from the circuit court’s ruling. See Virginia Code § 8.01-675.3.
Appealing a Ruling of the Virginia Court of Appeals
In the event you are unhappy with the decision of the Virginia Court of Appeals, you may have one more option available to you: you may file an appeal with the Virginia Supreme Court. See Virginia Code § 8.01-670(A)(3). As with the Court of Appeals, the Supreme Court has the discretion to decide what cases it will and will not hear. In order for the Virginia Supreme Court to hear your case, it will need to determine that there is a specific issue with your case that distinguishes it from other cases and that rendering a decision would be helpful in clarifying that specific issue for the lower courts to follow. It is incredibly rare for a custody and visitation matter to present such new and unique issues that the Supreme Court will hear it on appeal.
It is also possible to appeal a circuit court ruling on custody and visitation directly to the Supreme Court without first appealing to the Court of Appeals—although again, only in extraordinary circumstances would such an appeal be granted.
Should you and your attorney decide that an appeal to the Supreme Court is proper, you must note your appeal no later than thirty (30) days after the Court of Appeals decision being appealed was entered, or no later than ninety (90) days after a circuit court decision being appealed was entered. See Virginia Code § 8.01-671.
Is an Appeal Right for You?
Though appeals are available as recourse when a court has made a mistake, they are not an inexpensive or speedy avenue to pursue. An appeal to circuit court requires the time and money to put on a whole new trial, while appeals to higher courts will require countless hours of legal brief writing, analysis and oral argument.
Additionally, though an appeal may give you a second, third or fourth bite at the apple, it is by no means a guaranteed path to the outcome you desire. As with any trial, you are putting the disputed issues in the hands of a judge, which always has the potential to go either way.
In deciding whether or not to pursue an appeal of any custody and visitation order you should speak with an experienced family law attorney in your area. Livesay & Myers, P.C. has a team of experienced custody attorneys across offices in Fairfax, Arlington, Ashburn, Manassas and Fredericksburg, representing clients across Northern Virginia. Contact us to schedule a consultation today.