The recent 35-day federal government partial shutdown rippled through America’s fabric in big and little ways. One small way: a Virginia case1 had to be continued because a witness, a federal agent in Nebraska, could not fly to Virginia during the shutdown. Granting a continuance in this case preserved the defendant’s rights and safeguarded the integrity of the case. So, just what is a motion for continuance, and how could it affect your family law case?
What is a Continuance?
In grade school that pesky homework assignment sometimes snuck up on you. You completely forgot about it, and then you had to throw yourself on the mercy of the teacher: could you get some credit for bringing it in a day late?
The teacher had the option of granting a continuance, just as a judge has the option of granting one in a legal matter. A motion for continuance is the legally appropriate way to request more time; to delay a case; to continue it another day.
In most Virginia cases, motions for continuance do not request a delay of a single day; they seek to postpone hearings, trials, or other proceedings by weeks if not months. The motion must be filed by an attorney, who sets out particulars in a very brief legal document submitted to the court. The document outlines the particulars of the case:
- Plaintiff (or petitioner)
- Defendant (or respondent)
- Case number
- Scheduled court date
- Facts supporting continuance
- Indication of opposing counsel’s stance
The motion is reviewed by the presiding judge and either granted or rejected. If granted, the motion for continuance can shift the case to many weeks or months in the future. A new court date is set and published to all parties.
Benefits of A Motion for Continuance
Your family law matter is a legal case, and as such entitles you to a speedy trial under the Sixth Amendment to the U.S. Constitution. You and your attorney may waive that right to lock in certain benefits of a continuance:
- More time to prepare your case
- Scheduling of personal and professional witnesses
- Time to get depositions to support your side
- Increased time to seek a settlement, strike an agreement, move to mediation, or wear down the opposing side
In the hands of an adept attorney, a continuance may also serve to shift a case from one judge not likely to be favorable to your case to a different judge, based on the court calendar.
Downsides to Requesting a Continuance
Everything in the law compels a price to be paid. Though filing a motion could help, a motion for continuance could also hurt your case. If you get more time to prepare your case, so does the opposing side. In family law matters, court time is far slower than child-growing-up time, so you may miss opportunities to be with your own children due to the drawn-out proceedings.
Other reasons a continuance could play against you:
- Time is against you, as with custody battles for children following a school calendar
- You run the risk of incurring the judge’s wrath for what may seem like trivial delays
- You cannot delay simply for the sake of delay; you need legitimate reasons to postpone a hearing or trial, so a flimsy excuse could lead to a denial of the motion
- Opposing counsel does not have to go along; you yield power to the other side by seeking their approval of your delay
If your attorney’s motion is denied, and you are absent from court, the case will usually be heard in your absence. That could definitely hurt your case if you were hoping to offer testimony.
Virginia’s Courts and Motions for Continuance
The various courts of Virginia have different approaches to motions for continuance. For example, the Virginia Beach Juvenile and Domestic Relations District Court, which oversees child custody, visitation, support and other child-centered matters, grants the first continuance by agreement prior to trial if the matter is not a felony. Other continuances, including felonies, are granted only by the judge.
Virginia Beach’s General District Court, as an additional example, tells parties that their request for continuance must be made in person, before the judge on your original court date — or in writing at least two days beforehand.
Various circumstances generally lead to automatic continuances, such as a change of attorney (under § 8.01-16), when an attorney or a client is on active military duty, and similar issues beyond the control of any one party to the case.
Call the Family Law Firm for Men
Before making any assumptions about the use of a motion for continuance, speak with your attorney. You may have completely erroneous notions as to how the continuance could affect your case, the risks of having the motion denied, and the impact continuance could have on getting a speedy resolution to your family law matter.
Please telephone 757-383-9184 or contact us online to schedule a consultation with a Virginia family law attorney at The Firm For Men. Our experienced lawyers can explain motions, petitions, strategies and other fine points of the law. We specialize in helping Virginia’s men preserve and defend their rights.