Virginia Divorce & Custody Law: When Will My Trial Date Be?

If you file a divorce case in the Fairfax County Circuit Court (and this certainly is not unique to Fairfax), you might be surprised to learn that your final trial date will probably be between six months and one year from now. If you have children, and you and your spouse do not agree upon custody and/or visitation, that is a painfully long time to wait. What happens during the next year? If you moved out of the marital home and your spouse will not let you see the children, or if your spouse is dictating an unacceptable visitation schedule, or if you want custody, you will want the court to order a temporary custody/visitation schedule which will last until the final trial date (known as a "Pendente Lite" Order"). Unfortunately, you probably will not get such an Order in Fairfax.

Every Friday in the Fairfax County Circuit Court is known as "Motions Day." On Fridays the judges rule upon motions that can be argued by the lawyers in thirty minutes or less. However, Fairfax has operated under a long-standing policy that, absent a true emergency or extraordinary circumstances (it is near impossible to prove an emergency), the court will not make a custody determination or establish a visitation schedule on a Motions Day or at any other time prior to the final trial date. The court partly bases this rule upon the notion that the court will allow the parties to schedule a final custody and visitation trial within two to four months of the filing of the case (and thus the court does not want multiple custody/visitation motions clogging up its docket). In reality, however, it can be very difficult to schedule a trial within two to four months for numerous reasons, including: the court’s docket is extremely crowded and trial dates disappear fast; both sides may need time to properly prepare for trial, including issuing discovery and taking depositions; and if opposing counsel believes that the passage of time will benefit his client, he will attempt to schedule the trial as far into the future as possible.

This policy creates what I refer to as "no-man’s land" where there are no rules and each parent has an equal right to custody. If there is no court order governing custody or visitation, then each parent can refuse to give the children to the other parent. Such behavior leads to unfortunate situations, such as parents arriving at school early in an attempt to beat the other parent there to pick-up the children, heated arguments in front of the children, and the police being called. In practice, this policy tends to be harshest on fathers who want primary physical custody. Continuity and stability is important for children. If 3-6 months pass wherein the children are living primarily with the mother, the father’s chances of winning custody reduce dramatically, especially if the children are doing ok in mother’s care. Fathers are thus left with a very difficult decision of whether to refuse to give the children back to the Mother, which often leads to the above-noted altercations.