Grandparents’ Custody and Visitation Rights in Virginia
Virginia law does not recognize an independent right of grandparents to see and visit with their grandchildren without the consent of the parents. With that said, grandparents can petition the court for custody and/or visitation of their grandchildren.
First, if any nonparent (including a grandparent) seeks visitation of a child, the nonparent must be a person with a legitimate interest. Virginia law provides that a grandparent is a person with a legitimate interest.
Second, if both parents oppose a grandparent’s visitation, the grandparent must prove by clear and convincing evidence that denial of visitation would results in actual harm to the child. This is difficult to prove. Typically, expert testimony from a mental health professional is required to meet this standard. Finally, the grandparent must prove by preponderance of the evidence that visitation with the grandparent is in the child’s best interest.
If one parent agrees to visitation and one parent does not, the standard changes. In this scenario, the grandparent must prove by clear and convincing evidence that visitation is in the child’s best interest—a lower standard than the “actual harm” standard.
The best interest of the child include factors like the age and physical and mental condition of the child, parents, and grandparents, the needs of the child, and preference of the child if of reasonable intelligence, understanding, age and experience, among other factors.
First, just like the visitation standard, grandparents must show they are persons with a legitimate interest. Virginia law provides that grandparents are persons with a legitimate interest.
Second, the grandparent must prove by clear and convincing evidence that:
- The parent is unfit;
- There was a previous order of divestiture;
- There was a voluntary relinquishment;
- The parent abandoned the child; or
- Other special facts and circumstances constituting an extraordinary reason for taking the child from the parent.
Virginia courts do not lightly award custody of children to grandparents or any nonparents. There must be extenuating circumstances warranting such drastic measures. Parents have a constitutional right to raise their children, which is why the burden to prove parents unfit or within one of the other categories listed above is a high one.
Once a grandparent has proven one of the foregoing circumstances, the grandparent must prove by preponderance of the evidence it is in the child’s best interest for custody to be granted to the grandparent.
Grandparent custody or visitation by Agreement of the Parents
Sometimes, parents are in difficult circumstances and grandparents need to or have stepped in to care for their grandchildren. If the parents and grandparents are in agreement, the parents and grandparents can reach an agreement to transfer custody or visitation to grandparents. This agreement needs to be in a court order.
In many cases, a school, doctor, counselor, police officer, or other professional will only follow and enforce a custody and visitation order, not a custody and visitation agreement. It is important that the agreement and order are drafted by an attorney, who can ensure it is drafted properly and completely.