Where Should You File Your Family Law Case?
The Difference Between Jurisdiction and Venue
Jurisdiction and venue are two very different legal terms that are often, and wrongly, used interchangeably.
Jurisdiction is the power of a court to adjudicate a case upon the merits and dispose of it as justice may require. Litigants cannot bestow this power on the court by waiver or consent; jurisdiction can only be granted to a court by constitution or legislation. In Virginia, a court has jurisdiction over a family law case if it has (1) jurisdiction over the subject matter, (2) jurisdiction over the person, and (3) jurisdiction to render the specific relief sought. For example, pursuant to Virginia Code Section 20-96, the circuit courts in Virginia have jurisdiction over suits for annulment, divorce, separate maintenance, and for affirming marriages.
In contrast, venue is the place where the power to adjudicate a controversy is exercised, and it can be waived or laid by consent of the parties. Venue is attached to the location of the controversy, and is often geographically convenient for the litigants and is locationally near the relevant evidence to the case.
Venue in Your Virginia Family Law Case
So, what is the proper venue for your custody, divorce, or other family law case? In general, this is what Virginia law has to say:
Divorce. Pursuant to Virginia Code Section 8.01-261, the preferred venue for a suit for divorce is the county or city in which the parties last cohabited. At the option of the plaintiff, the proper venue can also be the county or city where the defendant resides, if the defendant is a resident of Virginia, or in cases where an order of publication is used against the defendant, venue is also proper in the county or city where the plaintiff resides.
Custody and Visitation. In cases involving custody or visitation, venue follows a priority order:
- The preferred county or city is (a) the county/city of residence of the child at the time of the filing of the petition, or (b) the county/city of residence of the child within six months before the filing of the petition where the child is absent because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as a parent continues to live in the city or county.
- Secondarily, a county/city that has significant connection with the child and in which there is substantial evidence concerning the child’s present or future care, protection, training and personal relationships, would be a proper venue.
- Even further down the priority list is the county/city where the child is physically present and the child has been abandoned or it is necessary in an emergency to protect the child because he or she has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent.
- Finally, any venue where it is in the best interests of the child for the court to assume jurisdiction as no other city or county is an appropriate venue.
Support. Support proceedings that involve child and/or spousal support, for the most part, are commenced in the city or county where either party resides or in the city or county where the responding party is present.
Family Abuse. Proceedings in which a protective order is sought as a result of family abuse are commenced in the city or county where (i) either party has his or her principal residence, (ii) the abuse occurred, or (iii) a current protective order, that remains in effect, was previously issued to protect the petitioner or a family or household member of the petitioner.
Venue can be contested, and a court may transfer proceedings to a different county/city in the event good cause is shown, in the event the parties agree to do so, in the event it is in the best interests of the child, or for other reasons deemed proper. Again, unlike jurisdiction, which is governed by statute, venue is very much related to what is most convenient.
From offices in Fairfax, Manassas, Leesburg and Fredericksburg, the family law attorneys at Livesay & Myers represent clients throughout Northern Virginia. If you have a family law matter and would like more information on where and how to petition the court for relief, contact us to schedule a consultation today.