Grandparents Rights to Custody: A Guide for Mom

Posted on Jun 24, 2015 by Katie Carter

If you’re a mom and someone else, like your parents or your child’s father’s parents, are petitioning the court to get custody or visitation from you, you’re probably scared and upset. After all, don’t you have a right to make decisions about who your children should and shouldn’t be around? Aren’t you right to consider the personalities of the different people who might influence them in a way you don’t want them influenced? As a parent, don’t you have the right to raise your children as you see fit?

You expect, to a certain extent, to have to share custody with your child’s father, but it’s just too much to now have to defend yourself from grandparents and others, too. After all, how many ways it is possible to “split the baby,” so to speak? It’s getting a little ridiculous.

Of course, children as special. Sweet, kind, cuddly, and adorable. You know your child, and certainly you can understand why others would want to play a more permanent role in your child’s life. Still, that doesn’t mean that just anyone can petition the court and ask for time with YOUR child. After all, as a mother, don’t you have some rights?

You definitely do have rights, but other people may have rights, too—particularly if they’re related to your children by blood or marriage. Let’s discuss, so that you have a full and complete understanding of the law in Virginia and how it works with respect to the rights of parents and non parents.

To start with, basically, it all comes down to the best interests of the child. That’s the standard that the courts and attorneys use to determine what kind of custodial arrangement would be best for the child.

Best Interests of the Child

In many families, best interests of the child never comes into play, because two people make a commitment to raise their child together, and it ends there. When, however, two parents disagree, or other people petition the court to get more time with the child (or to take custody completely, whatever the case may be), it’s up to the courts to make a lot of decisions about what’s appropriate for a minor child as far as care and upbringing. When custody and visitation are properly brought before the court, it has a lot of freedom to make decisions.

How do Virginia courts decide what might be in the best interests of a child?

“Best interests of the child” isn’t a phrase that’s unique to Virginia courts. In fact, courts all across the country use some version of the “best interest of the child” test to help them determine what is in the best interests of minor children in their jurisdictions. It may vary from state to state, but the end goal is the same: to provide judges with some guidelines for making big decisions.

In Virginia, there are ten factors that judges use to help them determine what is in a child’s best interests. So, if you’re gearing up for a custody case, the first thing you need to do is brush up on the factors themselves. (Hint: you’ll find that they’re pretty pro-parent.) You should also be prepared to discuss them at length in court—ideally, you’d even be prepared to base your entire argument around them. The ten factors, from Virginia Code § 20-124.3, are as follows:

1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;
2. The age and physical and mental condition of each parent;
3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;
4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;
5. The role that each parent has played and will play in the future, in the upbringing and care of the child;
6. The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;
7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;
8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;
9. Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and
10. Such other factors as the court deems necessary and proper to the determination.

I really can’t stress enough how important these ten factors are. In fact, if Moses was a Virginia resident preparing for a custody case when he found himself on Mt. Sinai, I’m pretty sure that these ten things would have been what God had carved onto those stones. They’re THAT important. Read them, learn them, understand them, love them. The factors aren’t the only thing that matters, but they’re pretty critically important. What else matters? Let’s discuss.

Grandparent and Non Parent Visitation

The Virginia Code differentiates between parents and people with a “legitimate interest” in the upbringing and care of a child.

Parents: Legal and Physical Custody

A parent, of course, doesn’t have to be biological, but does have physical and legal custody of the child. Legal custody refers to the right to make three types of decisions on behalf of the child: (1) non emergency medical care, (2) religious upbringing, and (3) education. In most cases, even in cases where custody is contested between mom and dad, legal custody is awarded jointly. Physical custody, on the other hand, has to do with where the child spends his or her time. That can be awarded primarily to one person (meaning that the non-custodial parent has 89 or fewer days with the child in a calendar year), it can be shared (meaning that the non-custodial parent has 90 or more days with the child in a calendar year), or it can be split (meaning that one parent has primary responsibility for one child, and the other parent has responsibility for the other).

Grandparents or Non Parents

On the other hand, though, according to the Virginia Code, grandparents are persons who have a “legitimate interest” in a minor child, so it’s not as though they have no rights at all. Who else has a legitimate interest? Let’s look at the statute:

” Person with a legitimate interest ” shall be broadly construed and includes, but is not limited to, grandparents, step-grandparents, stepparents, former stepparents, blood relatives and family members provided any such party has intervened in the suit or is otherwise properly before the court. The term shall be broadly construed to accommodate the best interest of the child. A party with a legitimate interest shall not include any person (i) whose parental rights have been terminated by court order, either voluntarily or involuntarily, (ii) whose interest in the child derives from or through a person whose parental rights have been terminated, either voluntarily or involuntarily, including but not limited to grandparents, stepparents, former stepparents, blood relatives and family members, if the child subsequently has been legally adopted, except where a final order of adoption is entered pursuant to § 63.2-1241, or (iii) who has been convicted of a violation of subsection A of § 18.2-61, § 18.2-63, subsection B of § 18.2-366, or an equivalent offense of another state, the United States, or any foreign jurisdiction, when the child who is the subject of the petition was conceived as a result of such violation.
So, obviously, not ANYONE can take you to court to petition for access to your child; the statute limits a person with “legitimate interest” to one that has already had an ongoing relationship with the child. Whether a non parent would be considered a person of legitimate interest is sort of up to the court, but it’s usually fairly easy to tell. Depending on the situation, it is possible that a person with legitimate interest would be allowed to have custody of or visitation with a minor child—sometimes even over the objection of the parents. It’s not a guarantee, of course; in fact, it’s definitely an uphill battle! Still, according to Virginia law, it is possible for the court to grant custody or visitation to grandparents or nonparents, so long as they qualify as a person with legitimate interest, in certain situations.

What does it mean to be a person with a legitimate interest?

A person with a legitimate interest isn’t just anyone; it’s someone with whom the child has either an ongoing relationship and/or a familial bond.

As a mom, you don’t have to do anything unless there’s already a custody order in place, whether by agreement or as ordered by the judge. If a grandparent or non parent wants to get custody or visitation from you, they’ll have to petition the court for it. Until the judge awards them something, you don’t have to give them anything (unless, for some reason, you want to).

Grandparents and non parents have two options when it comes to petitioning for custody or visitation. They can either (1) file a petition on their own behalf, with or without hiring an attorney. These petitions begin in the juvenile and domestic relations district courts (or J&DR, or J&D or juvenile court, as they’re sometimes called).

Additionally, if your child’s other parent is also petitioning for custody and visitation, the grandparent(s) or non parent can (2) petition along with your child’s other parent. Most of the time, though, we see grandparents and non parents petitioning on their own, not jointly with the non custodial parent.

Petitions with the non custodial parent

If your child’s other parent agrees with the grandparent or non parent about custody, they may choose to file their petitions together in the juvenile court. This happens sometimes. Usually, if a grandparent is petitioning for custody along with the non custodial parent, it means that the custody case is arising as part of a larger divorce action. (Custody cases can stand alone, especially if the parents are already divorced or never married in the first place, but they can also take place when a couple ends their marriage.)

Petition for grandparent’s rights (without jointly filing with non custodial parent)

In other situations, grandparents or non parents petition for custody or visitation (or both) on their own, even without an underlying divorce action.

As you can probably imagine, it’s difficult for a grandparent or nonparent to “win” one of these custody and visitation cases, because courts automatically give preference to the child’s parents in a lot of respects. Why? The court really does respect your ability to parent your child, determine how you’d like them to be raised, and it acknowledges that a lot of that has to do with whom you allow the children to associate.

Unless they’ve been judged unfit for some reason, custodial parents in Virginia have the right to make all decisions regarding the care and upbringing of their children. Other people, like grandparents and non parents, who have a legitimate interest in the child, have some rights, too. Their rights, though, are not greater than, or even equal to, the rights of parents when it comes to determining how they want to raise their kids.

Most of the time, the Virginia courts are pretty “hands off” when it comes to these types of cases, preferring to leave these decisions up to the parents. If parents have decided to keep someone away, how can the court undermine that decision? Don’t parents have the right to make those decisions? In most cases, fortunately, the answer is yes, especially when BOTH parents unite in their decision to keep a particular person away. The court’s primary interest is in preserving the parent’s relationship with the child; any other relationships are secondary in importance to the parent/child relationship.

If both you and your child’s father are resisting visitation, what can a grandparent or nonparent do to get it over your wishes?

First of all, let me say that it is really incredibly difficult for a grandparent or non parent to get visitation over your express wishes. They will likely have to petition the court for custody and visitation and have a full hearing in front of a judge. Then, at the hearing, they’ll have to show that the child would suffer “actual harm” without the visitation. As you can probably imagine, that’s a pretty difficult thing for anyone to show. How would they prove that, without allowing the child to have time with them, that the child will suffer some actual, substantial, measurable harm? It’s not enough to say that “a relationship with me would be so beneficial that for the child NOT to have it would cause harm”. “Actual harm” is a very, very difficult thing to show.

What if your child’s father will allow visitation, but you don’t want to?

Usually, grandparents don’t have specifically delegated visitation time. In a separation agreement, if you and your child’s father can reach an agreement, time will be split between mom and dad. Likewise, in a custody order, if the matter has to be decided in front of a judge, moms and dads get custody and visitation. Most of the time, the expectation is that, if the parent wants the child to have time with grandparents, those visits can take place during that parent’s parenting time. So, if, for example, your child’s father has every other weekend, he can use some of that time to let the kids spend time with their grandparents.

You don’t have to allow it on your time, but it’s pretty unlikely that you can prevent it on your child’s father’s time.

What does actual harm actually mean?

That’s really a great question. Actual harm means that the children would suffer tangible, specific, measurable harm without contact with the person with legitimate interest. It isn’t enough just to say that the children would be better off having that person in their lives. Actual harm means that, if the children don’t have this relationship, there will be real, quantifiable, specific damage that would follow from that exclusion in their lives.

Is this a different standard than if a petition was filed jointly with the non custodial parent?

No. It doesn’t matter whether a joint petition was filed with the non custodial parent, or whether custody and visitation petitions have been filed by the grandparent or non parent on their own. Either way, they’ll have to meet the actual harm standard. That’s great news for you!

What if my child’s grandparents plan to say that I’ve spitefully withheld the children? Does that matter?

Yes. A parent’s reasons for denying visitation matter. Again, if both parents agree that a certain set of grandparents, or a specific grandparent, is unfit to have visitation, the court will probably take those feelings very seriously. If, on the other hand, the behavior is spiteful, it may matter to the court in making it’s decision. Still, the primacy of the parent/child relationship will likely be respected, again, unless the grandparent or non parent can demonstrate actual harm.

What if the court does something awful and I want to change it?

Custody, visitation, and child support are always modifiable based on a material change in circumstances. If you lose your custody or visitation case, you can always re-petition the court later (so long as you can demonstrate that a material change has occurred).

If you want to take action right this minute, without waiting for a material change in circumstances, you can also appeal as soon as the decision is made, as long as you note it within the right amount of time. In Virginia, anything decided at the juvenile court level is automatically appealable to the circuit court. The circuit court reveals the case “de novo” meaning that it’s brand new; no evidence, facts, or testimony from the lower court will get in. The circuit court judge will hear it all over again, from the beginning, and will make his or her own independent decision. (The only catch is that, until the circuit court’s order is entered, you’ll have to follow the juvenile court judge’s order.)

As a mom, you have a lot of say in how custody and visitation will be handled, especially when it comes to grandparents or non parents. They’ll have a tough time winning custody over your objection, unless your child’s other parent allows them to have time during their parenting time. For more information, or to find a lawyer to help you handle this type of case, give our office a call at (757) 425-5200.