In general, custody and visitation for grandparents and other non-parent third parties (aunts, uncles, family friends, stepparents, etc.) is pretty well established. Though they can petition the court for custody and visitation, they have to meet a different standard than parents. Between two biological or adoptive parents, the standard is the best interests of the child. Between a biological parent (or parents) and a non-parent third party, like a grandparent, the standard is actual harm.
The only difference is when a grandparent petitions the court for custody and visitation after their child – the grandchild’s biological or adoptive parent – has died or been incapacitated. If your child’s father has not passed away or is not incapacitated, this does not apply to you. You are free to move on and use references that include the actual harm standard.
Virginia Code 20-124.2(B2) provides as follows:
B2. In any case or proceeding in which a grandparent has petitioned the court for visitation with a minor grandchild, and a natural or adoptive parent of the minor grandchild is deceased or incapacitated, the grandparent who is related to such deceased or incapacitated parent shall be permitted to introduce evidence of such parent’s consent to visitation with the grandparent, in accordance with the rules of evidence. If the parent’s consent is proven by a preponderance of the evidence, the court may then determine if grandparent visitation is in the best interest of the minor grandchild. For the purposes of this subsection, “incapacitated parent” has the same meaning ascribed to the term “incapacitated person” in § 64.2-2000.
That’s the law. That’s what we’re working with. But what does it mean?
It’s pretty clear when a child’s biological or adoptive parent (the law treats them the same, because they are) has passed away. But what does it mean to be incapacitated? The law provides a definition to this, too, in § (this little squiggly here means ‘section’) 64.2-2000. What does it say? Let’s look:
“Incapacitated person” means an adult who has been found by a court to be incapable of receiving and evaluating information effectively or responding to people, events, or environments to such an extent that the individual lacks the capacity to (i) meet the essential requirements for his health, care, safety, or therapeutic needs without the assistance or protection of a guardian or (ii) manage property or financial affairs or provide for his support or for the support of his legal dependents without the assistance or protection of a conservator. A finding that the individual displays poor judgment alone shall not be considered sufficient evidence that the individual is an incapacitated person within the meaning of this definition. A finding that a person is incapacitated shall not be construed as a finding that the person lacks the capacity to understand the act of voting for purposes of Article II, § 1 of the Constitution of Virginia and Title 24.2 unless the court order entered pursuant to this chapter specifically provides otherwise.
Ultimately, like is true in so many cases, whether one is considered ‘incapacitated’ is a decision the court will have to make, but it would include the things laid out above. You could argue, of course, that he is or is not incapacitated, based on whatever information and evidence you have. In all probability, a person who may be incapacitated would also be appointed a Guardian ad litem – much like a child, because not being the age of majority is also a ‘disability’ for court-related purposes – who would also make a recommendation to the court about the biological or adoptive parent’s level of capacity.
So, can these grandparents get parenting time with the child?
Though the court still uses the term ‘visitation,’ we most often call it ‘parenting time’ in conversation these days. The burden is on the petitioner – meaning the grandparents – to show that the deceased or incapacitated person would have wanted them to have parenting time, or let them have parenting time prior to his death or incapacitation.
I think the court would likely want to see what, exactly, the biological or adoptive parent allowed, based on a preponderance of the evidence, and would likely award something in keeping with that sentiment. If the children spent an annual week with the grandparents, for example, that might very well be extended.
I haven’t had a lot of cases that involved the use of this statute – as you can imagine, it’s fairly rare that this comes up – but it can. It’s probably unlikely that a grandparent who saw the children, even frequently, would suddenly be awarded 50/50 custody, but – of course – it always depends on the specific facts. The purpose of this statute is to keep the child’s other parent from being able to totally freeze out the grandparents after their child, the grandchild’s bio or adoptive parent, dies or is incapacitated.
What if we agreed before he died that the grandparents should not be around the kids?
If there’s no evidence that the grandparents ever cared for the kids or you both agreed to keep the kids away from the grandparents, the grandparents would likely have a hard time meeting the burden of proof required. Though it is not your burden, you could also introduce anything you have in your possession that relates to you and your former partner’s position related to his parents.
What if I’m facing a terminal diagnosis? Can I help my parents be allowed to see the kids, even if my partner objects?
Yes. It would probably be most helpful for your parents if you wrote up something specific regarding your wishes or if you started to allow them to spend expanded periods of time with the kids. A writing helps memorialize your wishes, but pictures and other documentation will support what they’re asking for, too.
Keep in mind that, as it relates to guardianship specifically, you’re probably going to be unable to name your parents over the child’s other biological or adoptive parent – but that doesn’t mean that they couldn’t ask for some parenting time afterwards.
If you’re facing a terminal diagnosis, it’s always a good idea to consult both a family law attorney as well as an estate planning attorney to make sure your affairs are really in order. It’s probably not realistic to think that you can keep custody from your child’s other parent, but your parents or other family members may be able to petition the court for visitation.
These cases are super complicated and what happens is always going to be heavily dependent on the specific facts involved. What is the nature of your (and your child’s father’s) relationship with your former in-laws? What is the nature of the grandparent’s relationship with the children? What did you and your child’s father say or believe about what those relationships should look like? What evidence do you have to support the role that the grandparents would play in the children’s lives after death or incapacitation?
Sometimes, death or incapacity happens suddenly; you don’t have a chance to come up with a plan or to ask the other parent to specifically articulate his wishes. In many cases, the other parent’s wishes are in accordance with the grandparent’s – they don’t mind them seeing the grandchildren. In other cases, though, disputes can arise.
For more information about your specific case or to schedule a consultation, give our office a call at 757-425-5200.