At Rinehart Bryant, we understand no one family looks the same. Families take many different forms, and this can create different challenges when it comes to determining who does or doesn’t have custody or visitation rights with children.
Virginia law does not specifically provide grandparents with custody or visitation rights upfront. Instead, the law allows a “person of legitimate interest” to petition for these rights when parents don’t give express consent. Grandparents are specifically included in the list of individuals determined to be of “legitimate interest” to a child.
There are several factors at play to determine whether grandparents can obtain custody or visitation rights in Virginia.
Parental presumption
In Virginia, the first consideration in custody cases is referred to as the “parental presumption,” which says the child’s best interests are served in the custody of one or both parents. Established in the case of Bailes v. Sours in 1986, the parental presumption can only be overcome with five specific factors:
- One or both parents are unfit
- A previous order divesting parental custody rights
- Voluntary relinquishing of parental custody rights
- Abandonment
- Special circumstances that prove an extraordinary reason to remove a child from its parent
If a grandparent would like to take custody of a grandchild, at least one of these situations must be present. This could mean the grandparent sees both parents are putting themselves, their hobbies or interests, and their own well-being above their children. It could also be that the parents are hardly known to the children and grandparents are generally taking more care of the children on a day-to-day basis. However, even if one of the five factors are proven, the Court must still determine that it is in the child’s best interests to grant the grandparent custody.
Grandparent visitation with consent
Visitation rights follow a different set of standards, but consent plays a major role. If one parent affirms they would like a grandparent to have visitation with their child then the courts will generally allow it. There are rare situations where a court may consider other factors, but if the parents approve then the courts rarely go against those wishes.
Grandparent visitation without consent
If neither parent consents to visitation rights, then “actual harm” to the child would need to be proven. This means the court will need proof that the child not seeing their grandparent would result in actual harm. This would likely require an expert and could be a more lengthy process.
It’s important to note that silence does not mean acquiescence in these cases. This means if one parent says they don’t want the child to have visitation with a grandparent and the other declines to answer, it will be assumed the response is also in the negative.
However, in the case of a deceased or incapacitated parent, special rules can apply. Where a parent’s “silence” because of death or incapacitation would otherwise be presumed, Virginia will allow a grandparent to provide evidence that the deceased or incapacitated parent consented to the visitation to avoid application of the “actual harm” standard for visitation with their grandchild.
Whether you’re a grandparent looking to gain custody or visitation rights, or a parent trying to stop this from happening, it’s important to have an experienced attorney who understands Virginia law by your side. At Rinehart Bryant, we have the expertise and know-how to take these cases to court and get the best result for the children involved. Contact your Virginia family law firm today.
Rinehart Bryant, PLLC
