What Happens at a Custody Hearing

Going to court for a custody case can feel overwhelming, especially if you have never done it before. Courts have strict rules about who may speak, when, and what evidence is allowed. Knowing what to expect can make a real difference in how your case goes.

Whether you filed for custody, or someone else filed and you were notified, you are a party in the case. You have the right to present your side.

This article walks you through what a hearing looks like and how to prepare.

How long will I wait? 

How quickly your case is heard depends on the local court's schedule. You may wait several weeks or months for a first hearing. 

Most cases need more than one hearing before a final decision is made. 

If you need the court to move faster because of a genuine emergency, ask the clerk's office about an emergency hearing, or look for it on the court's website. Courts usually need a concrete reason to move a case up. Read more about emergency custody.

What happens at the first hearing

At most first hearings, the judge will not hear full evidence but will make a temporary order. This is a short-term decision about custody or visitation while the full case is being decided. Have all of your evidence ready anyway. Some judges make a final decision at the very first hearing.

The judge may also:

• Require both parents to complete a parenting class
• Require the parents to go to mediation to attempt to work out a custody agreement
• Appoint a Guardian ad Litem, called a GAL, to look into the case and make recommendations about what is best for the child
• Order the local Department of Social Services to conduct a Home Study of one or both homes

The GAL and the Home Study investigator will interview both parents, the child, teachers, counselors, and others. What they find will heavily influence the judge's decisions.

How to behave in court

First impressions matter. Here are the basics:

• Always dress respectfully.
• Address the judge as Your Honor. Refer to everyone else as Mister or Ms.
• Many courts do not allow cellphones in the courtroom. Check the court's rules before you go.
• Even if phones are allowed, a judge may not be willing to look at evidence on a phone screen. Print everything out if you can, including screenshots of texts or other messages. The court will not print things for you.
• If you can, bring enough copies of documents for everyone in the room: the judge, the GAL, the other parent, and yourself. If you can only make one copy, one is better than none.
• Ask the bailiff about courtroom rules before your hearing begins. This will help you know what you should and shouldn’t do.
• Never argue with a witness or anyone else in the courtroom. If you object to something, raise your hand, say “I object,” and tell the judge your concern.
• Never argue with the judge. If you disagree with a ruling, say calmly: “I object, Your Honor.” If you still do not agree with the final order, you can go to the clerk's office after to file an appeal.
• It is okay to let the judge know if you cannot hear or if you need an interpreter. Raise your hand and the judge will call on you. If you did not understand what the judge said, you can also raise your hand and say you didn’t understand.

How a hearing works

The person who filed the petition is called the petitioner (or plaintiff). 

The other party is called the respondent (or defendant).

Petitioners go first and present their evidence. When they finish, the respondent presents theirs. Both parties may be asked if they would like to give a statement at the beginning or the end. If you do, keep it short, focus on what is best for your child, and be clear about what you would like the court to order.

Evidence comes in two forms:

• Testimony: people speaking under oath about things they have personally seen or experienced
• Exhibits: documents such as letters, emails, school records, medical reports, bills, photographs, text messages, videos, or voice messages

How to present your evidence

You have two ways to share your story with the court: by speaking for yourself, and by bringing witnesses and documents.

Speaking for yourself

You can tell the court your side of the story directly. To do this, tell the court you want to testify. You will be sworn in, and then you can speak. Only talk about things you personally saw, heard, or experienced.

Calling witnesses

You can also bring other people to testify on your behalf. Witnesses must speak only about things they personally saw or experienced. To call a witness:

1. Tell the court you have a witness.
2. The witness is sworn to tell the truth.
3. You ask the witness questions. This is called direct examination. Ask open-ended questions that do not suggest the answer. Avoid questions that can be answered with just yes or no. Leading questions, or questions that suggest the answer, are not allowed in direct examination. For example, you cannot ask: “Isn’t it true that you forgot to pick up the kid at school several times?” Instead, you could ask “What do you remember about your history of picking up the child from school?”
4. When you are done, the other party may ask your witness questions. This is called cross-examination. During cross-examination, leading questions are allowed, and you may ask questions that can be answered with just yes or no.
5. The judge may also ask the witness questions at any point.

Submitting documents

You can submit documents to support your case. These might include bills, letters, medical reports, photos, text messages, or voice messages.

Before handing anything to the judge, show it to the other party first. Then the bailiff brings it to the judge's bench. The court will ask if there is an objection before accepting it. 

Your documents may be on your telephone. If you don’t have a way to print them out, make sure they are downloaded or easily accessible. You may not be able to get cell service or access wifi in the courtroom. Tell the bailiff or court security personnel about the evidence on your phone before the hearing starts.

What is hearsay? 

One reason for an objection is “hearsay.” Hearsay is second-hand information. It is when someone in court repeats what another person said outside of court, instead of telling the court what they personally saw or heard.

For example: if your neighbor tells you that the other parent yelled at the child, and you repeat that in court, that is hearsay. But if your neighbor comes to court as a witness and says it themselves, that is not hearsay.

Some hearsay is allowed in court and some is not. The judge decides. Letters or documents from someone who is not present in court may also count as hearsay. The judge will decide whether to allow these.

Do not argue with witnesses or talk back to anyone in the courtroom. If you think the other party is presenting hearsay, raise your hand and say: “I object, Your Honor” and state your objection. Let the judge decide.

How the hearing ends

After all the evidence has been presented, the judge makes a decision. Sometimes the judge decides right away. Sometimes they take more time before issuing a final written order. If the court is issuing an order that day, you will be asked to wait outside the courtroom till the order is ready. 

If you disagree with the decision, you have the right to appeal the decision to the Circuit Court, where a new judge will hear the case. You must file the appeal at the JDR Court clerk's office within 10 days of the order. While your appeal is being decided, the original order is still in effect. Everyone must follow it until the higher court says otherwise.

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

Where can I get free or low-cost help? 

• Find your local legal aid office: virginialawhelp.org/get-legal-help or call 866-534-5243.
• Ask a lawyer a question online for free: virginia.freelegalanswers.org.
• Get a low-cost lawyer consultation for $35: vsb.org/Site/legal-help.

Things to remember

• Bring all your evidence to the first hearing, even if you expect only a temporary order.
• The GAL represents the child, not you. Be thoughtful about what you share with them.
• Dress respectfully. Address the judge as Your Honor.
• Never argue with the judge or anyone else in the courtroom. If you disagree with a ruling, say “I object, Your Honor.” You can always file an appeal after.
• If you want to appeal, you have only 10 days from the date of the order to file.