Grandparent Visitation When Your Coparent is Dead or Incapacitated

Posted on Apr 26, 2024 by Katie Carter

Grandparent visitation is often a hot button issue – especially when parents separate and/or divorce.  In general, grandparents don’t have a lot of rights to custody and visitation of minor children which, in my opinion, is as it should be.  The parents are the ones who are tasked with making the day to day decisions about where and with whom the child(ren) will spend their time, and the court doesn’t want to usurp that authority.

In most cases, grandparents have to demonstrate actual harm – that’s a tough thing to do – in order to be granted court-ordered custody and/or visitation that the parents aren’t willing to give them.  When the parents are united against having a particular set of grandparents involved, the court is loath to do anything about it.

When the parents don’t agree – say, for example, that mom thinks its fine for her parents to see the kids, but dad doesn’t agree and wants to prevent it – the court will usually support that one parent allowing the grandparents to see and have time with the kids (though not court ordered visitation) on that parent’s parenting time.  The court will not require the other parent to allow the grandparents to see or spend time with the child(ren) on their time.

When you see cases where grandparents DO have custody, that’s usually because the parents have given it to them!  I’ve seen it in cases where the parents were struggling with a drug or alcohol addiction, for example, and they gave their parents (or inlaws) “temporary” custody while they worked through their issues.  Then, later, when they go to get the kids back, there’s a whole kerfuffle over it.  At that point, because the grandparents took on custody of the kids, we move away from the ‘actual harm’ standard that we’d use for grandparents without official custody and visitation rights, and use the ‘best interests of the child’ standard that we’d apply between two coparents.

But there are plenty of other types of grandparent cases, aren’t there?  And a recent change to the law in Virginia in Code 20-124.3(B2) provides as follows:

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.

This provision applies specifically in the narrow situation where a grandparent doesn’t have access to a child because the child’s other parent is either (1) deceased, or (2) incapacitated.

The section even refers, helpfully, to a definition of who – and under what circumstances – is considered ‘incapacitated’.  Virginia Code 64-2000 provides a definition for an incapacitated person:

“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 be construed as a finding that the person is “mentally incompetent” as that term is used in Article II, Section 1 of the Constitution of Virginia and Title 24.2 unless the court order entered pursuant to this chapter specifically provides otherwise.

It’s a new law, so it’s hard to say how, exactly, it would be applied in a real case – but I think it’s always important to go back to the text of the law and to look, specifically, at what it says to determine whether this is something that, as a mom, you need to be concerned about.  Alternatively, you could be looking at this section from the perspective of a grandmother and trying to determine whether it’s worth pursuing an action against your son or daughter and/or former or current son or daughter in law.

What does the law say about grandparent custody/visitation in a situation where one parent is incapacitated or has passed away?

I provided the relevant text – and the link to the statute in its entirety – above.  But if you’re not used to reading and interpreting statutes, that might not be that helpful.  (In some cases, though, I’d add that it is difficult for attorneys to do this, too, not because we aren’t used to it but because the case law that comes down a particular point, especially when a law is new, can change the meaning of certain provisions or limit its application in ways that we maybe can’t anticipate.)

So, what do I see here?  I see that there are criteria.  You must be (1) a grandparent, who (2) has petitioned the court for visitation (note: this does not say custody), and (3) the natural or adoptive parent is either dead or incapacitated.  All three of these criteria must apply, or this does not apply to you – or, alternatively, to your in-laws, if you’re the mom.

It goes on.  The (4) person petitioning must be “related” to the deceased or incapacitated parent – so this rules out a grandma filing against her own natural born daughter if her son-in-law is deceased or incapacitated.

This person must then introduce specific evidence about THAT parent – the deceased or incapacitated one’s – consent to visitation with the grandparent.  And this evidence must, according to the laws of Virginia, show by a ‘preponderance’ (meaning, more likely than not) that the parent consented, then the court will use the ‘best interests of the child’ standard to determine whether visitation is in the child’s best interests.

That’s everything.  It’s really fairly complicated, if you ask me, and narrow in how (and to whom) it applies.  This isn’t ammunition for any grandparent who doesn’t have the “visitation” that he or she thinks that she should be entitled to have.  And even if you DO meet the narrow definition of such a person under this statute, you’re still going to have to introduce evidence that the dead or incapacitated parent – your child – WANTED you to have visitation with the child.

So, if grandma didn’t have time with the grandchild before that parent passed away or became incapacitated, or we don’t have specific evidence regarding his intentions with respect to visitation with the child for the grandparent, it would be difficult case, still, to win.

Good news for moms, I think, in most cases; not such good news for grandmas.  Sure, it’s a change, and it does allow people who meet a specific set of criteria to petition the court for court-ordered visitation with a minor child, it’s probably still going to be difficult to meet those specific criteria and then to prove that your child would have wanted you to have specific visitation with the child in the event of his death or incapacity.

It’s still really new, so I don’t have any real-life experience with this – yet.  But it’s a change that you – whether you’re a grandma or a daughter-in-law – will likely want to be familiar with.  Otherwise, though, we’re back the old standard line: grandparents have very few, if any, rights to custody and/or visitation of their grandchildren.

For more information, to request a copy of our custody book for Virginia moms, or to get more information about our custody seminar for Virginia moms, give our office a call at 757-425-5200.