Legal DiscoveryThis is the fourth post in our How to Change Custody in Virginia series. Our last post discussed how to begin the child custody modification process and discussed whether it is necessary or not to hire an attorney to file the Motion. In this post we will be discussing one of the tools used to gather information from the Opposition- the Discovery Process.

The discovery process is how both sides exchange and gather relevant information in order to build their case

The Family Court Judge is likely to order an evidentiary hearing, which is similar to a trial, at the initial hearing on your Motion to Modify Custody. This assumes that your Motion is not frivolous. Once the evidentiary hearing date is set, both sides will begin building their argument to explain why it is in the child’s best interest to be in the custody of a given parent. Both lawyers will require information from the opposing side in order to build this argument, .

Depending on how complex the case is, Discovery can take many forms in Virginia. Basic Discovery will include both sides disclosing lists of any experts or witnesses they plan to call to testify at the evidentiary hearing. Other disclosures will include producing documents such as tax returns, the child’s medical records, bank statements, etc. More complicated cases may require the use of Interrogatories or Requests for Admissions. This type of information requires the other parent to answer questions under oath regarding information that one feels is relevant to the case. This may come in the form of a written questionnaire that requires yes or no answers, or in the form of a deposition. In a deposition, the attorney would interview the other side under oath and a court reporter transcribes the entire meeting.

Informal Discovery is often favored and Formal Discovery must be approved

In Virginia, informal discovery is often used as both a way to save clients money and to move cases along. During informal discovery, both attorneys trust the other side to produce all documents and information that is necessary to a case. If a case is complex or contentious, and either side believes Formal Discovery is necessary, then permission must be granted by the Juvenile and Domestic Relations Court before such Discovery may begin. Formal Discovery is often requested in cases when one side believes the other party is actively hiding assets or engaging in deceitful practices. The opposing side then has the opportunity to object to the conduct of Formal Discovery. Grounds for this may include the argument that the formal Discovery Process is overly burdensome or that the information being sought is irrelevant to the case. Going back and forth with Motions can extremely costly; in many cases Formal Discovery is not necessary and the cost of the case can be reduced through Informal Discovery.

Every Family Court case is different and your attorney can advise you on your options with regards to Discovery and how best to proceed given the facts of your individual case. For more information on modifying a child custody order in Virginia contact our office.