Non Parent Rights in Virginia Custody

Posted on Feb 28, 2018 by Katie Carter

Everything changes when mom and dad can’t make it work. Things that used to work out and were generally accepted sometimes don’t continue to work, especially where nonparents are concerned.
Specifically: grandparents.

Here’s the typical scenario: mom and dad are happy together (married or unmarried, it’s irrelevant). Mom’s mom is super active in the kid’s lives, and everyone is happy. Maybe grandma even provides daycare. It’s not a problem. The kids love her, she loves the kids. Everybody is happy.

But then, when mom and dad’s relationship doesn’t work out, suddenly dad has a problem with grandma. She doesn’t like him anymore. (Well, that happens, rightly or wrongly, when a mom watches her daughter go through a breakup, especially if she feels her daughter has been wronged somehow in the process.) He thinks she’s bad for the kids. She’s poisoning them against him. She can’t watch them; she’s not appropriate as a caregiver, especially since she so obviously hates dad. (A claim that may or may not be exaggerated.)

Grandma is upset. Mom is upset. The kids are upset. So, what happens?

What rights does a non parent have to custody and visitation under Virginia law?

Whether they’re biological grandparents or honorary grandparents, it doesn’t really matter. As far as Virginia law is concerned, the only people with real rights to a child are the parents. When a parent has a problem with a nonparent having custody or visitation with the child, it makes the situation complicated.
Sometimes, grandparents do get custody of a child – but that’s usually because the parents initially give grandma custody. It’s very, very difficult for a non parent to win custody in the court, because they have to show that, without their involvement, the child will suffer actual harm. That’s a high standard to meet – how, after all, do you show that actual harm will actually take place? Parents, on the other hand, just have to make arguments about what’s in the child’s best interests – that’s a very, very different standard.

Can dad keep grandma away from the kids?

Typically speaking, what happens is that custody and visitation is determined, either by agreement or by order of the court.

Mom has time with the kids, and dad has time with the kids. Mom can’t force dad to use his time any specific way (except, of course, to take the kids to school, once they’re school aged), and vice versa. Each parent has the right to make lots of decisions for the kids, especially when they’re in his or her care.
That includes not allowing someone (like grandma) access to the child. If dad doesn’t want grandma to see the children, he can refuse to designate any of his visitation time to grandma.

Conversely, though, mom can also allow grandma time when she has the kids. She can likely even allow her to watch the kids, though she might be subject to dad’s first right of refusal.

As far as school performances and sports and so on are concerned, though, grandma can continue to be involved. Dad can’t ban grandma from any public places, and if she wants to be present for these things, she can and should be. That doesn’t mean that dad has to allow her any time with the child before or after the event, especially if it’s on his time. But that doesn’t mean she can’t be a participant, and show the kids that she supports them. Is it ideal? No, of course not. But, where there’s a will, there’s often a way.

What if dad doesn’t want grandma to see the kids at all?

It’d be hard. And it would, more than likely, require a litigated case. Your child’s father would have to put on evidence about how your mother is a bad influence. Theoretically, a judge could order that someone have no contact with the kids. Or that it be supervised or otherwise limited in some way.

I don’t see it happen much. Generally speaking, you can have who you want around the kids (provided that they aren’t, like, dangerous felons or registered sex offenders – that kind of stuff the judge will likely take pretty seriously) on your time, though you can’t impose restrictions so much on how your child’s father spends his time.

What if he has someone I want to keep away from the kids?

So far, we’ve assumed that it’s he who is trying to keep someone you’ve deemed meaningful out of the child’s life. But what if this happens in reverse? What if he has someone in his life who is dangerous or inappropriate for the kids to be around?

You’ll still have a hard road if you want to keep his mom (just an example) out of the picture – unless you’ve got some serious evidence on her. It’s a relatively hard thing to do.

Still, if you both agree, you can sign an agreement refusing to allow the child to be with a certain person, or to require that someone (like dad) be there to supervise in the event that visitation with the child does take place. Grandma won’t get formal visitation in most cases, so she’ll have to settle for taking some portion of dad’s allotted time.

What about honorary grandparents or someone who isn’t related to the child?

Most of the time, I hear about honorary grandparents, godparents, or other non family members who are looking for visitation with the child. I mean, it makes sense. Kids don’t JUST form relationships with their family members; they form relationships with whoever happened to be around. Kids don’t care whether someone is actually blood related.

The same standard applies for anyone who is a non parent. It doesn’t matter whether it’s actually grandma or an honorary grandma; she will have to meet the actual harm standard to get custody and/or visitation awarded by the judge, unless, for whatever reason, you reach that agreement in writing.
Non parents are in a tricky space, legally. I can totally understand both sides of the argument – that grandma is super important, and to keep her away would kill the kids, and also that grandma is a poisonous person who is dangerous for the kids to be around, especially because she has nasty comments to make about the child’s actual parents. Either way you fall on the side of the argument, though, the result will be the same. Generally, it’s your choice who you see with the children while they’re in your care. But custody and visitation, in most cases, stays between mom and dad.

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