Recently, Virginia has taken a seemingly liberal approach to determining who can seek custody of and/or visitation with a minor child. The law states that only mothers, fathers, legal guardians and “persons with a legitimate interest” may ask a court to decide matters involving the custody or visitation of a minor child.
The question then becomes who has a legitimate interest?
Obviously, the natural parents, legal guardians and in most cases, adoptive parents of a minor child have vested rights or legitimate interests in seeking custody or visitation of their minor child. Virginia law has also recognized that in certain instances, grandparents have a legitimate interest in seeking custody of or visitation with their grandchildren. However, a grandparent’s battle to obtain a favorable custody determination is an uphill one. A grandparent must (1) rebut the legal presumption that custody rights belong to the grandchild’s natural parents, and (2) demonstrate that the grandparent’s custody is in the grandchild’s best interests.
The law presumes that a child’s best interests are served when the natural parents of that child have custody rights. It is then left to the discretion of fit parents’ whether to allow their children to have visitation with the grandparents. This presumption must be rebutted by “clear and convincing evidence,” which is a particularly high legal standard.
The Virginia Supreme Court has established five (5) scenarios under which the presumption in favor of parental custody may be rebutted: (1) prior court order divesting either parent of their parental rights; (2) a parent is unfit to have custody; (3) a parent voluntarily relinquishes their parental rights; (4) parental abandonment of the child; and (5) any other “special facts and circumstances” the court deems worthy of “taking a child from its parent, or parents.”
If a grandparent can establish one of the above situations, then the court will next decide whether custody with the grandparent(s) is in the child’s best interest. When making this determination, the court will look to a multitude of factors, many of which are listed in Section 20-124.3 of the Virginia Code. These considerations include the physical and mental health of the grandparent(s) as well as the child, the role the grandparent(s) has played in the child’s life thus far, the grandparent’s propensity or ability to promote meaningful relationships between the child and other family members, history of family abuse, if any, and the reasonable preference(s) of the grandchild if the court decides he or she is capable of having a genuine preference. Unlike rebutting the legal presumption in favor of custody of the natural parents, a grandparent must establish by a preponderance of the evidence (as opposed to clear and convincing evidence) that custody is in the grandchild’s best interests.
A grandparent also has the right to petition the court for visitation with their grandchild (as opposed to obtaining full legal custody). In this case, a grandparent’s visitation rights depend on whether both parents object to visitation, or only one parent.
If both parents object to a grandparent’s visitation with their child, the court must make an explicit finding that actual harm will come to the child’s health and welfare if the court doesn’t order grandparent visitation. If the court does, in fact, make this determination, it must then decide whether there is clear and convincing evidence that visitation with the grandparent(s) is in the child’s best interests.
If only one (1) parent objects to their child’s visitation with a grandparent(s), then the court simply must decide whether visitation with the grandparent(s) is in the child’s best interests. In this scenario, the parents and grandparent(s) are typically able to reach an agreement regarding visitation outside of court, without making a judge decide.
If you are a grandparent who wants custody of or visitation with your grandchild, or have any other family law matter, the qualified family law attorneys at the DiPietro Family Law Group are here to help you. The family law attorneys at the DiPietro Family Law Group have decades of experience with all family law issues in jurisdictions across Northern Virginia, Maryland and Washington, DC.
Contact us today for a consultation at (888) 530-4374 or visit our website.