How to Settle Child Custody in Virginia: 3 Steps
In a settlement, parents work together to propose custody orders. The alternative is litigation, which ends with a judge deciding custody in a trial.
Settling is recommended because orders are usually easier to implement and better for children when parents decide them. It's faster and less expensive than going to trial, and it prevents a contentious court battle.
The steps to settling depend on whether you reach an agreement before or after you file your case and which court you use. Regardless, your agreement becomes a final order if the court decides it meets the children's best interests.
In a partial settlement, parents resolve some of the issues in their case, and the remaining issues continue to trial.
In a full settlement (recommended), parents compromise on all issues in their case, including legal and physical custody, a parenting time schedule and child support.
Deciding a settlement before you file an uncontested case
Often, Virginia parents decide their settlement before starting the legal process so that they can file an uncontested case. Private mediators and lawyers often help with negotiations and paperwork.
Once they have a settlement ready, one parent (called the plaintiff) opens the case and requests the agreed-upon arrangements in their paperwork. The other parent (the defendant) agrees with the requests in their response. Then, to get the settlement approved, the plaintiff completes the steps below for the relevant court.
Because spouses must live separately for a year before they can ask Circuit Court for a no-fault divorce, many use this time to work out their settlement. Often, they create a separation agreement to manage custody and other issues for the year, then use the agreement to file an uncontested case. (Fault-based divorces, on the other hand, rarely reach settlement before filing.)
Unmarried parents and spouses handing custody separately from their divorce can also decide settlement details before opening a Juvenile and Domestic Relations District Court (J&DR) case. No separation period is required.
In both courts, it's possible to have an uncontested case without reaching an agreement before you file. If the defendant files a response agreeing with the plaintiff's initial paperwork, the case is uncontested, and the settlement process begins.
Deciding a settlement after you file a contested case
If one parent disagrees with the initial filing paperwork or requests different custody arrangements, your case is contested. Most courts refer contested cases to an alternative dispute resolution process to encourage a settlement (unless the case involves domestic violence).
J&DR cases are usually referred to mediation orientation, where the parents choose whether to continue to mediation. Circuit Court cases are referred to judicial settlement conferences. In both courts, parents can agree to hire a private mediator instead, and nothing stops them from working out a settlement on their own.
When you reach an agreement, start the settlement process for your court below.
Steps to settling in Circuit Court
Step 1: Prepare paperwork
If a lawyer or mediator helps you reach an agreement, they create or complete most of the following items for you. Otherwise, do this on your own, but have a legal professional review before you sign.
- Decree of divorce (details legal and physical custody, plus a parenting time schedule)
- Parenting plan (if you want to set co-parenting ground rules)
- Separation agreement (if you want to apply one from your separation period)
- Worksheet for calculating child support
- Order of Support
- Division of Vital Records Report of Divorce (VS-4)
You have to create the first three items from scratch, according to your court's requirements. (Custody X Change templates can help.) The last three items are forms, and each court has its own versions. Contact your court clerk for details.
When you speak to the clerk, ask if you need an ore tenus hearing in order to settle.
If yes, complete a request for an ore tenus hearing, which the plaintiff and their collaborating witness will have to attend.
If no, get affidavits from the clerk. The plaintiff and collaborating witness must each complete one, then sign in front of a notary.
Step 2: Submit paperwork
Turn in your completed paperwork to the court clerk.
If your case requires a hearing, you'll schedule one now, likely one to three months out.
If it doesn't require a hearing, skip to Step 3.
Possible: Attend ore tenus hearing
If the case has an ore tenus hearing, the plaintiff and their corroborating witness must attend. The other parent can attend, but it's not required.
The plaintiff and witness answer questions from the plaintiff's lawyer. If unrepresented, the plaintiff reads the questions aloud in place of a lawyer.
Refer to these ore tenus questions from Chesapeake County as an example of what to expect. Some courts provide forms to help you prepare.
Step 3: Receive final orders
If your settlement is approved in a hearing, the judge signs the final orders there, and you get them immediately.
If your case is approved by affidavit, the court mails your final orders four to eight weeks after you file the settlement paperwork. Parents must follow the agreed-upon arrangements while waiting.
Steps to settling in Juvenile and Domestic Relations District Court
Step 1: Prepare paperwork
If your case is uncontested, the requests in your initial filing paperwork serve as your settlement agreement.
If your case is contested, create proposed orders for child support, parenting time and custody. Creating a parenting plan is also recommended.
When an attorney or mediator helps you reach an agreement, they write your proposed orders for you. If you reach an agreement on your own, contact the Court Services Unit for your court's formatting requirements or forms.
Step 2: Attend hearing or have attorney submit paperwork
If either parent has legal representation, have the attorney or lawyers submit the completed paperwork. Then you can move on to Step 3.
When neither parent has a lawyer, the plaintiff must appear in court to finalize the settlement. They can do this at the initial hearing, automatically scheduled when you open a case (typically for several months later). If the parents don't have an agreement ready in time, they can request another hearing later.
When reviewing a settlement in a hearing, the judge confirms with the plaintiff that both parents have agreed, but no other formal testimony is required.
Step 3: Receive final orders
If an attorney submits your settlement, the court mails the approved final orders to them four to eight weeks later. Then, the attorney sends copies to both parents. Parents must follow the agreed-upon arrangements while waiting.
If your settlement is finalized in a hearing, the judge signs the orders there, and you get them immediately.
After you've settled
The custody journey continues after you receive final orders. Now your responsibilities include:
- Following your parenting time schedule closely
- Communicating civilly about co-parenting
- Tracking child-related expenses if your parenting plan calls for splitting them
- Modifying your parenting plan if it becomes necessary
To do all of this and more, use Custody X Change.
The online app's customizable calendars, parent-to-parent messaging, expense tracker and parenting plan template will make life after settlement as straightforward as they made settlement itself.