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Appeals in Family Cases
Appeals in Family Cases

There are two types of appeals that can come up in a Virginia family law case.  Virginia has a two-level system of courts for family matters.  The Juvenile and Domestic Relations General District Courts (J&D court)  can decide child custody, visitation, child support and spousal support.  They cannot grant a divorce or divide property.   Only the Circuit Court can do that.  The Circuit Courts have all the powers the J&D courts have plus the power to divide property and grant a divorce.

Any decision the J&D court makes can be appealed to the Circuit Court.  The Circuit Court is required to disregard the J&D court’s order and consider the matter as if the J&D case had never happened.  There is a new trial and a different judge makes the decision.  The term for this is a trial de novo.  Any party who doesn’t agree with the decision of the J&D court can appeal it to the Circuit Court and have a trial de novo.

After that, however, the term “appeal” has a quite different meaning.  An appeal from the Circuit Court goes to the Virginia Court of Appeals.  That court does not conduct trials.  The one hearing it holds is usually quite brief with the lawyers getting only a few minutes to make their points.  The arguments are mostly made in written briefs submitted by the two sides.

The issue at this level is whether the trial judge made a mistake in applying the law to the case.  For example, if the judge allowed evidence the rules say cannot be considered or refused to allow evidence the rules permit, that would be the kind of mistake that could cause the Court of Appeals to reverse the decision and send it back to the judge to do over.  In one case I had, the Court of Appeals said the trial judge had not used the right method in dividing the parties’ property.

Once the court has reached a decision, one of the judges will write an opinion that explains why they came out the way they did.  These written opinions serve as guidance for the Circuit Courts and for the Court of Appeals itself in later cases.   Lawyers in later cases will point to these opinions  to say what the law is.  Appellate opinions are as important as the Virginia Code.  They interpret the Code by applying it to the specific facts of different cases.

If one side is not satisfied with the ruling they get from the Court of Appeals, they can ask the Virginia Supreme Court to review the case.  While the Court of Appeals has to consider the appeals that come to it, the Virginia Supreme Court gets to pick which cases it will decide.  They will be more likely to take a case if the legal question is especially important.

 

About the Author

Robert Jeffries
Robert Jeffries
administrator