Grandparent custody rights in Virginia are a hot topic, and the situation most often arises when the grandchild’s parents are not acting in that child’s best interest. In these cases, the forced grandparents are to file what is known as a third-party petition for custody.
The petitioner must show several additional items other than what is in the child’s best interests to be successful.
How Does a Grandparent Get Custody Rights in Virginia?
First, they must show that they are known as “a person with a legitimate interest.”
As a blood relative concerned for the welfare of your grandchild, you qualify as a “person with a legitimate interest” in the Commonwealth of Virginia if you wish to petition for custody. However, you are still considered a third party according to the Virginia Code. Parental presumption will trump a third-party petition if the parent is shown to be fit.
Second, the person must show by “clear and convincing evidence” that it is in the child’s bests interests to have custody or visitation given to the 3rd party. Only five recognized avenues in Virginia allow for this to be complete:
- Parental Unfitness: Are the parents using illegal drugs or abusing alcohol, or engaging in activities that create an unsafe environment for their child?
- Previous Order of Divestiture: Have the parents lost custody of the child in the past? Is there evidence to suggest they should not have custody now?
- Voluntary Relinquishment: In the event, a parent is deployed or incarcerated for a lengthy period, can you prove they have willingly granted you the right to care for their child? Can you prove it’s in the best interest of the child to stay with you in the long-term?
- Abandonment: Can you prove the parent has relinquished their child to you without a good reason? Proving abandonment can prove parental unfitness.
- Special Facts and Circumstances: Is there evidence that the parents are not acting in the child’s best interests? Are they physically or emotionally abusive, homeless or without income, or unwilling to seek aid for their child’s medical issues?
Petitioning for Visitation Rights for Your Grandchild
In cases where only visitation is requested, the Virginia Courts have ruled that the petitioner must demonstrate that “actual harm” will occur to the child if visitation is not granted. This is a higher standard than if the petitioner asked for full custody of the child.
Upon demonstrating to the VA court “situation to seek visitation,” a grandparent must then prove that visitation is in the best interests of the grandchild.
Among the elements to be considered are:
- whether grandparents and grandchild have a pre-existing relationship;
- whether grandparents support a grandchild’s relationship with parents
- Is there any animosity between the children’s parents and the grandparents?
The quality of the relationship between the grandparents and the child’s parents is not a sufficient basis upon which the Court determines whether or not visitation with the grandparents is in the child’s best interests.
Our Experienced Family Law Attorneys Are Here for You
Your chances of satisfying any of these circumstances can improve with the help of a Suffolk grandparent's rights attorney who specializes in family law. At Bush and Taylor, PC, our lawyers have the experience and knowledge you need to prove your case. Whatever the situation that has prompted you to seek custody, we are here to help. Contact us today for a consultation to discuss your rights as a custodial grandparent.