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How to File for Custody or Visitation in Virginia

Read this in: Español

Author: Valerie L'Herrou

Custody is about where a child lives and who makes decisions for them. Visitation, also called parenting time, is the right to spend time with a child even if they do not live with you. To get either, you need to file a petition, which is a formal request, with the court.

This article explains who can file, which court to go to, what it costs, and how to do it step by step.

Who can file? 

You can file for custody or visitation if you are a parent. 

You can also file if you are a grandparent, step-grandparent, stepparent, former stepparent,  blood relative, or have a strong relationship with the child. If you are not a parent, what you need to prove to get custody is harder. Read more: Grandparent and Non-Parent Custody in Virginia

What should I do before filing? 

Gather paperwork, including:

  • Information about the child
  • Any court orders in place regarding the child
  • Information about the child’s other parent or guardian, such as addresses and places of employment

Having these documents will help you get ready to fill out the forms. 

Think about how you will answer the court’s questions. You should also gather evidence, like documents and witnesses, to show the court why they should approve your custody or visitation request. Read more: How Does a Judge Decide Who Gets Custody?

If you have a friendly relationship with the other parent, you may be able to come to an agreement about custody and visitation before you go to court. You can do this on your own or with a mediator. 

Showing the court that both parents can work together to meet the child’s best interests makes it more likely the court will decide in a way that you will both feel good about. You can find a court-certified mediator in your area on the VA Courts website. If you are able to come to an agreement, the court is less likely to order something that neither party is happy with.

Which court do I file in? 

To file for custody or visitation, go in person to the Court Services Unit (CSU) of the Juvenile and Domestic Relations Court, called the JDR Court. The CSU may not be in the same building as the courthouse. Make sure you go to the CSU that serves your city or county's JDR Court.

In most cases, the right JDR court is either:

  • The court in the city or county where your child currently lives, or
  • The court in the city or county where your child lived in the last six months, if a parent still lives there.

Find your local CSU. If you are not sure, call the Clerk’s office and ask. You can find the phone number for your court on the VA Courts website. 

If you do not have an existing custody order, you will need to file in the JDR Court. 

If there is already a custody or visitation order in place, file a “motion to amend” in the court that issued the original order. Do not file a new petition in a new court. Read more about changing a custody order. If the child and parents live in a new state, you can go to the court in your new locality and file a “motion to register the original custody order.” Once the order is transferred, you will be able to file a “motion to amend” in the new court.

When you file for custody, you will need to fill out an “affidavit” about whether there are any other custody orders for the child. Signing an affidavit is the same as swearing an oath to tell the truth in court. If you do not tell the truth in the affidavit, there could be consequences, including losing custody.

If you are going through a divorce and you and your spouse cannot agree on custody, file a petition for custody in the JDR Court. Include that order with your divorce paperwork. If you do agree, you can file your written custody agreement directly with the Circuit Court when you file for divorce. 

  • In a contested divorce, your spouse can try to move the custody case to the Circuit Court that will decide the divorce. This is true even if you file for custody and support to be handled in the JDR Court before you file for divorce. This may happen if your spouse hires a lawyer, because lawyers often want to handle cases in Circuit Court instead. The Circuit Court is not as friendly to people who don’t have a lawyer.
  • The JDR court can still decide on custody, even if your divorce is being handled in the Circuit Court.
  • If you are filing an uncontested (“no-fault”) divorce, custody and support must be decided before you file the divorce in the Circuit Court. These can be decided by agreement or by the JDR court.

Read more: Divorce in Virginia

What does it cost? 

It costs $25 to file. If you are filing for more than one child at the same time, you only pay the $25 once. 

If you cannot afford the fee, you may be able to have it waived, so you do not have to pay. Virginia Law Help has a free online tool you can use to fill out a fee waiver form and bring it with you to court.

Filing for custody or visitation

  1. Go the the Court Services Unit

    Go in person to the Court Services Unit (CSU). 

    Anyone filing without a lawyer must go through the CSU. You cannot download and submit the forms on your own. The staff there will help you fill out the paperwork.

    Some CSUs require an appointment while others do walk-ins only (with limited hours/days). Call ahead before you go. Find your local Court Services Unit. Depending on the CSU, you may be seen on the same day or you may have to make an appointment within a few days or a few weeks.

  2. Tell them what you are asking for

    Tell the staff you want to file for custody, visitation, or both.

    Be ready to explain:

    • Your relationship to the child
    • Where the child lives now
    • Why you want custody or visitation
    • Any concerns about the child's safety or well-being
    • Whether there is a support order or agreement in place
    • Whether there is an existing custody order from another court. If both parties now live in the area of the court where you are filing, the court may decide to have that order transferred

    The staff can help you understand what information goes where. They cannot give you legal advice.

    The staff will also ask you for:

    • Your child's date of birth, Social Security number, and current address
    • The other parent's address or last known address
    • If the other parent is in the military, and if so, if they are on active duty. This may impact the timing of any custody hearings

    If you do not have the other parent's address, tell the staff. They will explain what steps to take so the other parent still gets notified.

    If you are trying to change an existing custody or visitation order, bring a copy of that order with you.

    If you need an emergency custody order, tell the CSU, and a motion to expedite will be filed along with the custody petition.

  3. Pay the filing fee or ask for a waiver

    Pay the $25 filing fee, or bring your completed fee waiver form to ask for the fee to be waived. 

    If you have not already filled out a fee waiver form, the CSU or the clerk's office will have one. Fill it out completely. The form asks about income, public benefits like SNAP or Medicaid, and money in the bank. Even if you already receive public benefits, you still need to fill out the whole form. 

  4. Your court date

    Depending on the CSU, they may print out the paperwork and have you take it to the clerk’s office at the courthouse to file it yourself. After you file, the court will schedule a hearing. They may provide you with the hearing date while you wait, or mail it to you. The other parent/custodian will also receive a summons with the court date on it. This could be in a few weeks or a few months.

    Court papers will be sent to the addresses you put on the petition. Watch for them.

    If your situation is urgent, tell the CSU when you file. Read more: Getting Emergency Custody in Virginia. 

What to expect at the first hearing

At most first hearings, the judge will not hear full evidence. Instead, they may make a temporary order, which is a short-term decision that stays in place while your full case is being decided. 

Bring all your evidence anyway. Some judges make a final decision at the very first hearing. If your evidence is on your phone, you may need to get permission to bring your phone into the courtroom. Ask the court security staff. Print everything out if you can, including screenshots of texts or other messages. The court will not print things for you.

If there are any court orders or police reports relating to domestic violence or abuse, get those from the court where the hearings happened.

The judge may also:

  • Require both parents to complete a parenting class
  • Require both parents to attend mediation to work out a parenting plan
  • Appoint a Guardian ad Litem, called a GAL, to look into the case and make recommendations about what is best for the child
  • Order a Home Study of one or both homes

A GAL is a special lawyer the court appoints for the child. The GAL represents the child's interests, not yours. Anything you say to the GAL may be used to support a different position than yours. It is best to be polite and respectful to the GAL.

Can I get temporary custody or visitation right away? 

Yes. The court can order temporary custody or visitation while your full case is being decided. You do not have to wait for a final order if the situation is urgent. If you need the case moved up because of a genuine emergency, ask the clerk's office about a motion for an expedited or emergency hearing. 

Read more: Getting Emergency Custody in Virginia

What happens next? 

Once you have an order, it is the law. Both parents are required to follow it.

A few things to keep in mind going forward:

  • Keep a copy somewhere safe. Read it carefully so you know exactly what is required of both you and the other parent.
  • Give a copy to your child’s school, especially if the other parent is not allowed to pick up the child.
  • Do not move far away from the other parent, or out of state, without getting an agreement in writing with the other parent, or first getting permission from the court to do so.
  • If your address changes, you are required to tell the court and the other parent.
  • Follow the order, even if the other parent is not. Violating a court order, even in small ways, can affect your case down the road.
  • Keep records as you go. If the other parent misses visits, is consistently late, or is hard to reach, document it. Dated screenshots of texts or missed calls can be useful if a dispute comes up later.
  • If the other parent is not following the order, you can ask the court to enforce it, by filing a “Motion to Show Cause” in the court that issued the order.
  • If the order is working well, check in on it over time. Children's needs change as they get older, and what works now may not work later. If something important changes in your family, you may be able to ask the court to update the order.
  • If you want to challenge the judge's decision, you have only 10 days from the date of the order to file an appeal.

Read more: Changing, Enforcing, or Appealing a Custody Order

Do I need a lawyer? 

For custody cases, the court will not appoint a lawyer even if you can't afford one.

You do not need to have a lawyer for a custody case. Courts can be intimidating and confusing, but it is pretty common for people to represent themselves in visitation and custody cases.

Just keep in mind that a final custody order is the law. Once it is in place, it is hard to change. If you can safely work things out with the other parent, you may have more control over the outcome. Put any agreements into writing, and have both parents sign. 

Either way, getting legal advice before you go to court is worth the effort.

(If the Department of Social Services (DSS) filed a protective order or petition to remove your child, this is different. If DSS took you to court or removed your child from your custody, you may have the right to a court-appointed lawyer. If you are not sure what kind of case you have, contact a legal aid office before you do anything else. Read more about DSS cases.)

Where can I get free or low-cost help? 

Things to remember

  • If you do not have a lawyer, you must go in person to the Court Services Unit to file.
  • Call ahead. Some courts require an appointment.
  • It costs $25 to file. Fee waivers are available if you cannot afford it.
  • Bring all your evidence to the first hearing, even if you expect only a temporary order.
  • If there is already a custody order, go back to the same court to change it.