Rights to Child Custody: A Non Parent’s Guide

Posted on Jun 26, 2015 by Katie Carter

Just because you don’t have a blood relationship to a child doesn’t mean that you don’t feel compelled to stay involved in a child’s life once you’ve already begun. You can have a relationship with a child for about a million different reasons, aside from any kind of familial ties you might have and, when the situation changes and you no longer have contact with a child for whom you’ve begun to care deeply, it’s difficult to adjust. You might start to wonder whether it’s possible to file for visitation—or even custody—with that child, despite the preference of the child’s parents (or, in some cases, the preference of just one parent).

Of course, as you are probably already aware, parents are super important when it comes to custody and visitation, and the court gives them a lot of power to determine with whom they want their children to come in contact. It may seem harmless to you, because you want to be involved purely for the best interests of the child, but the parents may have different feelings. The court will likely give them a lot of latitude when it comes to determining how they want to raise their children. Still, if you’re committed to doing something to try to get custody or visitation, you’re not without rights—provided, of course, that you’re a person with a “legitimate interest.”

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. In certain situations, people with a “legitimate interest” are allowed to have custody or visitation with a minor child, 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 in certain situations.

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

A person with a legitimate interest in the child is someone who has an ongoing relationship and familial bond with the child. Here’s what the statute says:

” 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.
As you can tell, the statute lists people who may be considered persons of legitimate interest—like stepparents or former stepparents and blood relatives. It doesn’t provide an exhaustive list, though, but instead leaves the definition of the term up to the court. So, even if your relationship to the child is not one that is listed in the statutory definition, the court may still consider your petition. It’s not a bad idea to talk to an attorney to find out whether you would likely be viewed as a person with a “legitimate interest,” and how strong your case might be. It’s worth a shot, right?

As a non parent, can file a petition for custody or visitation on your own behalf, with or without a lawyer, starting in the local juvenile and domestic relations district court.

Petitions for custody and visitation as a non parent

If you’re hoping to either get custody or visitation of the child, your first step is to go down to the juvenile and domestic relations district court and file petitions for custody and visitation (or just visitation, if that’s all you want).

There’s no question that these types of cases are some of the most difficult (like, nearly impossible) custody cases to win. As you can probably imagine, courts automatically give preference to the child’s parents, especially when it comes to deciding how a child should be raised and with whom they allow the child to associate. It may seem relatively innocuous to you, because you know that you only have the child’s best interests at heart, but the law DOES allow parents to make these types of decisions.

Especially in a case where both parents agree that your influence is unwanted, you’ll definitely be fighting an uphill battle to get visitation—let alone custody.

Custodial parents in Virginia have the right to make decisions regarding the care and upbringing of their children, unless, for some reason, they’ve been judged unfit. Depending on your situation, some non parents can be found to have rights, so long as they’re deemed by the court to be persons with a “legitimate interest”, but their rights are not greater than, or even equal to, the rights of the parents to determine how they want to raise their kids.

Virginia courts are generally pretty hands off when it comes to these types of cases. When parents have made a joint decision to keep a particular person away, how can the court undermine that decision? Don’t parents have the right to make those decisions? In most cases, unfortunately, the answer is yes, especially when BOTH parents unite in their decision to keep a person out of their children’s lives. The court’s primary interest is in preserving the parent’s relationship with the child; any other relationships are considered secondary in importance to the parent/child relationship.

But what can a non parent do to get visitation when both parents are denying it?

It’s pretty difficult to get visitation over the parents express wishes, and you’ll probably have to have a full hearing with a judge if that’s your goal. In order to prove to the court that you should get visitation against the parent’s wishes, you will have to prove to the court that the child will suffer “actual harm” without the visitation.

As you can probably imagine, this is intentionally a very difficult standard to meet. How do you prove that, without your influence, some actual, substantial, measurable harm will result to the child? 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 difficult thing to show.

If you plan to challenge the child’s parents based on the “actual harm” standard, it’s probably a good idea to talk to an attorney as soon as possible to begin preparing for and building your case.

What if one parent will allow you to have visitation, but the other parent won’t?

In most cases, non parents don’t have specifically delegated visitation time. In a separation agreement, if the child’s parents 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 non parents, those visits can take place during that parent’s parenting time. So, if, for example, the parent with whom you are close has time with the child every other weekend, you wouldn’t have specifically designated time, but that parent could let you, say, take the kids for some portion of his or her allocated time.

If you’re getting along with one of the child’s parents, you can always try to work it out so that you have time during that parent’s parenting 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 you. It isn’t enough just to say that the children would be better off having you in their lives. Actual harm means that, if the children don’t have a relationship with you, there will be real, quantifiable, specific damage that would follow from your exclusion in their lives.
What if the court doesn’t give me any visitation?

Custody, visitation, and child support are always modifiable based on a material change in circumstances. If you aren’t awarded custody or visitation, 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, you can 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.) Make sure you ask the court how long you have to appeal it so that you don’t miss any important deadlines.

For more information, or to schedule a consultation, give our office a call at (757) 425-5200.