Grandparent Rights in Virginia
Grandparents may seek custody or visitation of their grandchildren for any number of reasons. Perhaps one or both parents have become incapacitated, incarcerated, or otherwise unfit to have custody. Or perhaps a grandparent feels that a parent is preventing them from maintaining a health relationship with a grandchild. What recourse does a grandparent have in one of these situations? What are a grandparent’s rights to custody and visitation in Virginia?
Grandparent Custody Rights
In Troxel v. Granville, 530 U.S. 57, 65 (2000), the U.S. Supreme Court established that parents have an inherent constitutional right in rearing their children. The Court stated that the “interests of parents in the care, custody and control of their children… is perhaps the oldest of the fundamental liberty interests recognized” by the Court. However, this right belongs only to parents—it does not belong to grandparents. So, under what circumstances may grandparents be granted custody of a child in Virginia?
Virginia law does allow grandparents to win custody over natural parents in certain circumstances. Virginia Code § 20-124.2 allows for any “person with a legitimate interest” in the care and custody of a child to petition for custody, and Virginia Code § 20-124.1 defines that term to include grandparents.
Although the Virginia Code thus allows a grandparent to petition for custody, winning a custody battle against the child’s natural parent(s) can be extremely difficult. It is a two-step process for grandparents in Virginia, composed of (1) rebutting the legal presumption in favor of the natural parent(s) and then (2) proving that awarding custody to the grandparent is in the child’s best interests.
Rebutting the Parental Presumption
Virginia law presumes that a child’s best interest will be served when the natural parent(s) of the child have custody. To win custody, the grandparent must rebut this presumption by “clear and convincing evidence.”
The Virginia presumption in favor of natural parents was established in Bailes v. Sours, 231 Va. 96, 340 S.E.2d 824 (1986), a case in which a stepmother was awarded custody of a child over the petition of the child’s mother. The child’s father had died, and the mother was a virtual stranger to the child, only visiting the child approximately once per year over a nine-year period. The child had only known the home established by the father and stepmother, and had a strong and loving relationship with both the father and stepmother. The trial court found both women fit to parent, but held that the stepmother had rebutted the presumption in favor of the mother by clear and convincing evidence.
On appeal, the Supreme Court of Virginia in Bailes set forth five circumstances under which the legal presumption favoring natural parents may be rebutted: (1) parental unfitness, (2) previous order of divestiture, (3) voluntary relinquishment, (4) abandonment, and (5) “special facts and circumstances” which justify “taking a child from its parent, or parents.” The Court found that the facts in Bailes met the fifth factor, special facts and circumstances, and thus that the parental presumption was rebutted.
The Bailes test would apply to a grandparent seeking custody in Virginia against a natural parent. Meaning, the grandparent seeking child custody must first rebut the legal presumption in favor of the natural parent. To do so, the grandparent must establish the presence of one of the five factors stated by the Court in Bailes, by clear and convincing evidence.
Best Interests of the Child
After rebutting the parental presumption, to win custody against a natural parent in Virginia the grandparent must prove that awarding them custody is in the child’s best interests. The grandparent must prove this by a “preponderance of the evidence.” In determining the best interests of the child, Virginia courts look to the factors listed in Virginia Code § 20-124.3, which include the mental and physical health of the petitioning parties and the child, the role each party has played and will play in the child’s life, the ability and willingness of each party to support the child’s other familial relationships, the reasonable preference of the child, and any history of family abuse.
In Bailes, the court did not assess the best interests of the child until the stepmother had first rebutted the parental presumption by clear and convincing evidence. After the stepmother rebutted that presumption, she stood on equal footing with the natural mother in the court’s determination of the best interests of the child. Like any parent in a custody dispute, the stepmother needed to demonstrate to the court that awarding her custody of the child would serve the child’s best interests. The court in Bailes found that the stepmother had proven exactly that.
Likewise, a grandparent seeking custody of their grandchild would need to show that the child’s best interests would be served by awarding custody to the grandparent.
Grandparent Visitation Rights
In addition to or in lieu of seeking custody, a grandparent in Virginia can petition the court for visitation with their grandchild. The rules for grandparent visitation depend on whether it is a case where both parents object to grandparent visitation, or only one parent objects to visitation.
- Where Both Parents Object. If both parents object to a grandparent having visitation with the child, then before a court may award the grandparent visitation, the court must first find that there would be an actual harm to the child’s health or welfare absent such visitation with the grandparent. Secondly, if there would be an actual harm to the child’s health or welfare, the court must then determine that there is clear and convincing evidence that visitation with the grandparent is in the best interests of the child.
- Where Only One Parent Objects. In cases where only one parent objects to grandparent visitation with the child, the court will bypass the first step (actual harm without grandparent visitation) and move directly to the second step of determining whether visitation with the grandparent is in the child’s best interests. In many cases the objecting parent and grandparent(s) are able to eventually reach a visitation agreement, rather than putting the question of grandparent visitation to the court to decide.
New Avenue for Grandparent Petitions for Visitation
Effective July 1, 2021, a new law in Virginia will grant additional rights to grandparents interested in petitioning the court for visitation. The new law revises § 20-124.2 to allow grandparents to petition the court for visitation of minor grandchildren if the grandparent’s child, who is the parent of the child for whom visitation is sought, is deceased or incapacitated.
In these cases, the grandparent must be able to introduce evidence of the deceased or incapacitated parent’s prior consent to visitation with the grandparent. The law provides that if the parent’s consent is proven by a preponderance of the evidence, the court may then determine if grandparent visitation is in the best interest of the grandchild.
Custody and visitation cases involving grandparents vs. natural parents can raise complex issues. Whether you are the grandparent or the parent, be sure to review the facts of your case with an experienced family law attorney. The custody attorneys at Livesay & Myers, P.C. have years of experience with grandparent custody and visitation cases. From our five convenient office locations, we represent clients across Northern Virginia. Contact us to schedule a consultation today.
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