In Virginia, a petition for custody or visitation may be filed by either parent or by any “person with a legitimate interest.” Virginia law defines a person with a legitimate interest broadly to include grandparents, stepparents, former stepparents, blood relatives and family members such as aunts, uncles or adult siblings. Once the court finds that a person seeking custody or visitation qualifies under this definition, then it will consider the best interests of the child in determining whether custody or visitation should be granted, and making any other rulings pertaining to the petition before it.
Any person who has had his or her parental rights terminated by a court, or who seeks access to a child for another who has had his or her rights terminated, voluntarily, involuntarily or by adoption, may not be considered a person with a legitimate interest—regardless of their ties to the child.
In addition, any person who has been convicted of rape, carnal knowledge (statutory rape), or molestation of his or her own child will not be considered a person with a legitimate interest.
Virginia does have a presumption in favor of biological parents and a parent’s right to decide visitation for their own child.
Where both parents agree that a person of legitimate interest should not have visitation with their child, the court will typically oblige—unless the third party can demonstrate (1) that the child would suffer actual harm if visitation were denied and (2) that there is clear and convincing evidence that visitation with the person is in the best interests of the child.
Example. A grandmother acts as the daily caretaker for her grandchild for some substantial period of time, with the child becoming very closely bonded to the grandmother as a result. Then, the child’s mother decides that she wants the child back, and also discontinues allowing the grandmother to see the child. The child’s father agrees with the mother in objecting to continuing visitation for the grandmother. The court may find that the relationship with the grandmother is such an important part of the child’s life (1) that the child would suffer actual harm should the relationship be discontinued, and (2) that there is clear and convincing evidence that continuing visitation with the grandmother is in the best interests of the child. The court may then grant visitation over the objection of both parents.
Where only one of the biological parents objects to the visitation, the court will bypass the first step (finding actual harm if visitation were denied) and move directly to the second step of determining whether visitation with the person is in the child’s best interests.
The caveat to the presumption in favor of parents is that such a presumption is in favor of fit parents. Where a parent may be unfit, the court will likely find that extraordinary circumstances override the deference normally given to the parent-child relationship. This could mean granting custody of the child to the third party person with a legitimate interest.
Since the law is fairly broad in this area, these cases are very fact-specific. In any case where a third party seeks custody or visitation of a child, the court will be concerned with: whether the third party is a person with a legitimate interest; the fitness of the biological parent(s); the length, time, and type of relationship that the third party has had with the child; whether it benefits the child to begin or to continue a relationship with the third party; and any objections that one or both parents may raise regarding the third party. Ultimately the court will seek to make a decision that is in the best interests of the child given all of the evidence before it.
If you are a person of legitimate interest seeking custody or visitation with a child, or a parent seeking to block third party visitation with your child, be sure to consult with an experienced attorney regarding the specific facts of your case. Livesay & Myers, P.C. has teams of family law attorneys in Fairfax, Ashburn, Manassas and Fredericksburg, Virginia. Contact us to schedule a consultation today.