Custody Petitions Filed by Non-Parents in Virginia

Posted on Mar 8, 2021 by Katie Carter

It happens a lot; a parent, for whatever reason, lets an aunt or a grandmother take over parenting their child for a period of time. Sometimes, it’s a result of substance abuse or addiction, mental illness, or life circumstances that mean that, for whatever reason, the parent herself isn’t stable enough to care for the child.

If you’re the aunt or the grandmother, you’re in a really tricky position. On the one hand, the child’s parent is in no position to parent. On the other, the child’s parent is still the child’s parent and, under Virginia law, has a lot more rights than you, as a non parent, do.
There are complications, too. It’s difficult to navigate school enrollment, medical care, or obtain necessary services for a child when you don’t have actual custody of the child in question. But, what can you do?

There are two sides to this, as to almost every issue I ever cover – the legal side and the “we live in the real world here” side.

We live in the real world in the sense that, for even a bad parent, filing for custody triggers something in that reptilian brain, that fight or flight. They’re going to fight, probably. I mean, it’s their kid – and, probably, deep down they truly WANT do to the right thing. It’s hard to face the fact that YOU may not be the right thing for your own child. It’s also hard to stand by and see someone publicly say that you’re not doing what you’re supposed to do. What they tend to hear is “They’re saying I’m a bad parent” – and, even worse, its happening publicly.

Besides, filing something triggers a breakdown in the relationship. That’s the real world talking. It’s not like you can file something, and fight your child’s parent in court, and then expect everything to go back to normal. Win or lose, it’s a big choice to make that can have lasting personal consequences for your relationship with the child’s parent. And, if you lose, could lose you access to the child at all.

Practically speaking, too, filing custody petitions often takes a toll on the child. In many cases, a guardian ad litem will be involved, and the guardian ad litem will often have discussions with the child about the case, or even ask the child his or her preference (though they are trained in working with children, so can often do so with some delicacy). It’s hard, there’s no doubt about it. But it’s done to avoid having to bring a child to court, which is always incredibly damaging. Not to mention that, in general, children love their parents – whatever their parents have done, and however little their parents deserve it – so it can be extra psychologically damaging to the child. So it’s a lot to consider, on top of any legal considerations.

Which brings me to the real subject of my article today: legal considerations.

As a non parent, what are your options when it comes to filing custody and/or visitation petitions on behalf of your niece, nephew, or grandchild?

I wish I had good news. As a non parent, it’s extra hard. I mean, it’s extra hard on purpose, to prevent people from being able to take away a parent’s autonomy. Parents are supposed to be able to make their own decisions about how to raise their children, without interference from others – whether well meaning or no.

That does kind of break down in a case where a parent may not be the best person to raise their own child.

Virginia decides custody cases using the ‘best interests of the child’ standard.

Most states have some version of a ‘best interests’ standard. That applies in custody and visitation cases where it’s mom against dad.
When it’s non parent versus mom and/or dad, it’s a bit hairier.

As a non parent, you don’t get the benefit of the best interests of the child standard, unless and until you have custody of the kid(s) in question. You have to meet an ACTUAL HARM standard, meaning that the child will be the victim of actual, measurable, certain harm if what you’re asking for – whether custody or visitation – is not granted.

It’s not going to be enough to say that the kid is on anti depressants, and therefore suffering. It’s not going to be enough to say the kid is struggling in school or is generally neglected. It’s not going to be enough to say that mom and/or dad isn’t nice enough, or doesn’t take the child’s needs into account enough. You’ll have to show that the child will be subject to, for example, actual physical abuse at the hands of the parents, or something similar, if you aren’t able to take over custody.

It’s hard. It’s kind of built that way for a reason. There’s so much subjectivity when it comes to what makes a good parent, or what a child actually needs to thrive; the court doesn’t want to open the door to people who just think that they should be able to say that a kid needs something different than what a parent can provide. It is a situation where reasonable minds may differ, and also where different children might need different things. Parents have the ability to decide what their child needs, and the court doesn’t allow non parents to influence things so much – at least, not judicially.

Once you GET custody, though – whether you get it in court, or whether you’re able to get an agreement in place giving you custody – then you’re in equal footing, and you can compete using the “best interests” standard instead.

It’s probably going to be easier to get custody by an agreement, rather than through litigation, since you won’t have to meet the actual harm standard.

A “friendly” agreement may be your easiest bet, especially if you need to have custody in order to enroll the child in school or pursue medical treatments or therapies that the child needs. Once you have custody, you’ll be on more even footing in the courtroom, which can be helpful.

Still, you’ll need evidence – and you may find that the child’s parent(s) are given more leeway than you think they should be. Courts allow parents to rehabilitate; whether they’re former criminals or addicts or they’re suffering from a mental illness, once they get back on the straight and narrow they are often given opportunities to parent again. It’s good for the kid, as long as the parent is in good enough shape to have parenting time – and, in some cases, the parenting time could be supervised or whatever, as necessary, depending on the circumstances.

It’s not easy, but you may feel that, depending on the circumstances, you need to at least try to gain custody through the courts. As a mother (and a devoted auntie), I can completely understand the love of a child – whether your own or those belonging to someone else in your family circle. It’s definitely a good idea to talk to a lawyer about your options, and come up with a plan – whether it’s filing custody and visitation petitions, or trying to negotiate a written custody agreement.

Your niece/nephew/grandchild is lucky to have someone like you to care so deeply for them. Keep on loving them and trying to help, and you won’t go wrong. For more information, or to schedule a consultation with one of our attorneys, give our office a call at 757-425-5200.