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How is a Court date scheduled?
Once you have
filed your petition with the local intake office or local Division of
Child Support Enforcement (DCSE), the petition will be forwarded to the
Clerk's Office. The Clerk's Office will assign the first available
court date and the petition and summons will be sent to the Sheriff's
Department for service on all parties. If one of the parties resides
outside of the Commonwealth of Virginia, the summons and petition is
forwarded by certified mail, return receipt requested.
What happens on the Court date?
The first
hearing on custody/visitation is called a Preliminary Hearing.
People involved in the court hearing will already have received a copy of
the summons, petition and initial order. The hearing is scheduled
for 7 minutes. All parties involved will speak with a mediator prior
to the hearing before the Judge. At the hearing, the Judge will be
advised by the mediator that (a) the parties are in agreement to all
issues and an order will be entered, or (b) the parties are not in
agreement. If there is no agreement, the parties will be referred to
a mandatory mediation orientation and a trial date will be set for a full
hearing if the case is not settled in mediation.
The Court may
enter an order in the absence of a party if that party has been properly
served with notice of the hearing.
What happens when the Court enters a Preliminary Hearing Order?
- The order may require parental evaluations/home studies to be
conducted by the Dept. of Social Services and costs may be assessed.
- The order may appoint a Guardian ad litem to protect and represent
the interest of the child in connection with all court proceedings and
costs may be assessed against the parties. (This is an attorney
certified by the Virginia Supreme Court to represent the interests of
children).
- The parties will be ordered to attend a mandatory mediation
orientation on a date certain.
- The case, if contested, will be scheduled for a pre-trial
conference.
What happens at the Pretrial Conference?
The pretrial
conference is a brief hearing (30 minutes) with the parties, counsel &
Guardian ad litem. A pretrial order requires that the following
information be provided to the Court in writing three (3) days prior
to the pretrial conference, with copies to all parties:
- A statement of the issues that have been resolved.
- A statement of the factual and legal contentions that remain in
dispute.
- The completed child custody/visitation "Best Interest of the
Child" proffers.
- A statement summarizing the parties efforts to settle the case.
- A list of stipulated evidence (evidence that all parties agree on)
- A list of witnesses, with physical addresses, whom you expect to
call at the trial with a brief summary of the testimony of each
witness. Any changes have to be made at least 10 days prior to
the trial date. Those witnesses not listed will not be permitted
to testify. The children involved will not be subpoenaed unless
requested by the Guardian ad litem.
- An estimate of time necessary for the trial.
What happens once a trial date is set?
The Judge at the
trial makes a determination of custody, visitation and/or support.
The Judge will consider several factors listed in Virginia Code §
20-124.3 to determine custody and visitation of minor children. (Code
Section available at the clerk's office).
§ 20-124 of the
Virginia Code defines joint and sole custody and provides a list of
factors to determine custody and visitation.
Witnesses:
Witnesses
include, but are not limited to, you, your friends and relatives close to
you and your children, childcare providers for the children, teachers and
counselors for the children. Any witness fees charged by your
witness will be your responsibility.
To formally
request that a witness be present at the trial, you must obtain a Request
for Witness Subpoena form from the clerk's office. Any request for
witness subpoena must be filed with the Clerk's office at least 10 days
prior to the trial date. Witnesses that the
subpoenaed must reside in the Commonwealth of Virginia.
How to subpoena documents/records:
Requests for
documents are made by filing a Subpoena Duces Tecum. You must obtain
a subpoena duces tecum form from the clerk's office. If the records
you are seeking are medical records, you are required to complete a Notice
to Providers form and a Notice to Patient form. These forms can also
be obtained in the clerk's office. Any request for a subpoena duces
tecum must be filed with the Clerk's Office at least 15 days prior to
the trial date. There is a $12.00 service charge for each
subpoena duces tecum and must be paid at the time form is filed.
The custodian of
the records is the person who has the records in their possession.
Documents should be sent to the Clerk's Office. This is done by
marking an "X" in the second box under line 1 of the subpoena
duces tecum. The date on which to return the documents should be the
trial date, or a date prior to the trial date.
How is the amount of child support calculated?
The Judge
determines child support according to the Child Support Guidelines,
Virginia Code §20-108.2. Usually no deviations from the amount are
ordered unless the facts of the case justify deviation per Virginia Code
§20-108.1. You will be required to bring certain financial
information to your hearing in order for the DCSE representative to
complete the guidelines. |
