Virginia Visitation Rights for Grandparents and Non Parents

Posted on Aug 27, 2014 by Katie Carter

You only have to turn on the TV to discover (if you didn’t already know) that the modern family is a complicated, messy situation that can involve all sorts of people, from parents and step-parents, to aunts, uncles, cousins, brothers, sisters, godparents, grandparents, unrelated family friends, and other partners. It doesn’t really matter whether the people involved are related by blood or marriage, or actually aren’t related to each other at all. To most of us, it doesn’t really matter whether we’re family by birth or family by choice; what’s important to us is that we’re able to be a part of the lives of the people that matter most to us.

It’s easy to fall in love with kids. It comes so naturally to most of us, probably because it has something to do with how we’re hard wired. Problems tend to arise, though, when you fall in love with kids, and then, somehow, your family situation changes. Something, whether death or divorce or break-up or relocation, somehow keeps you from being an active part of the children’s lives, like you always thought you would. Whether you’re a grandparent or non-parent (like an aunt, uncle, or former family friend, for example), it can be possible (although it is very, very difficult) to get visitation time with that child.

We probably see this most often in the context of grandparents, and usually as a result of divorce. The custodial parent suddenly doesn’t want the child’s other parent’s parents seeing the child. Sometimes, it happens for different reasons. The parents together can be united in their disapproval of the grandparents in question, and can try to keep the child away. In other situations we’ve seen, particularly in same sex relationships, when the couple breaks up, one parent tries to keep the child’s other parent (their former partner) away from the child. Because the law isn’t sufficiently evolved to contemplate all these cases (particularly when the child was the product of a previous heterosexual relationship, or of some kind of in vitro fertilization process or other assisted reproduction technique using the eggs of only one of the partners), complications can arise.

Ultimately, each state is responsible for determining how these types of cases will be handled. Since the statutory law tends to lag behind the current trends, in a lot of states it’s the case law (basically, the law as decided by the judges on the bench when these cases come before them) that controls how custody and visitation is decided.

In Virginia, it’s difficult for a non parent to get custody or visitation of a child, especially if the parent(s) is/are willing and able to have custody on their own, or if the parent(s) are united in a desire to keep the child away from the non parent seeking custody or visitation. The court believes that the parent’s relationship with the child is primary, and any other person with an interest in the child is secondary.

Best Interests of the Child

The court has the power to make a lot of decisions regarding the care and upbringing of minor children. When these issues are properly brought before the court, the court has a lot of latitude in making these decisions.

How does the court decide?

The court uses the ten “best interests of the child” to determine what kind of custodial or visitation arrangement will most benefit the children in question. If you’re gearing up for a custody case, whether you’re a parent, a grandparents, or a non parent, it would definitely be beneficial for you to brush up on these factors, and be prepared to discuss them at length in court. 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.

These factors are what the court will use in making a decision about custody and visitation, so it’s a good idea to be familiar with them, and capable of making arguments that support your position regarding visitation with the child. Keep in mind that there will be additional requirements beyond the custody factors, too, so we’ll talk more about that in a minute.

Grandparent or Non Parent Visitation

The Virginia statute respects the rights of people with a “legitimate interest” to have a relationship with a minor child, even over the objection of the parents, in certain situations. This doesn’t guarantee that a grandparent (or a non parent) will be successful in their suit, but it does allow the court the freedom to grant custody or visitation to non parents in certain situations.

Who is 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.

Grandparents (or non parents) have two main options when it comes to petitioning the court for visitation: they can either (1) petition for visitation on their own, or (2) petition the court together with the non custodial parent (the parent who has less time with the children). Usually, a non parent will petition the court for visitation on their own, without a joint non custodial parent petition.

Petitions with the non custodial parent

Most of the time, if the grandparent is petitioning along with the non custodial parent, it happens as the result of a larger divorce action. The children’s other parent is keeping the children away from the non custodial parent and, by extension, from the grandparents as well. Both the non custodial parent and the grandparents want to spend more time with the children, so they would file jointly for custody and visitation with the non custodial parent and officially ask the judge to give them both more time with the children.

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

Sometimes, too, grandparents or non parents may find it necessary to petition for custody or visitation (or both) even without an underlying divorce. If, for whatever reason, both of the children’s parents are denying the grandparents access to the grandchildren, the grandparents may choose to file their own independent petition to formally ask the court for more time to spend with the children.

These cases are some of the most difficult cases to win because the court automatically gives preference to the child’s parents. Why? It may seem harmless to you, especially when you know you have the best interests of the children in your heart, but the law allows parents the freedom to determine how they want to raise their children. All parents, unless they’ve been somehow determined to be unfit, have the right to make major decisions regarding the care and upbringing of their children. Even though grandparents have rights, their rights are not greater than (or even equal to) the rights of the parents to determine how they want to raise their children. In most circumstances, the court takes a hands off approach to these types of cases. If the parents want to keep the grandparents away, who is the court to decide that they’re wrong? Don’t they have the right to make that kind of decision? In most cases, the answer is yes. The court is supportive of the opinions of both parents, especially when they’re united in their feelings about the grandparents. Again, the parent’s relationship with the children is the primary focus of the court; any other relationships that the child may have or may form in the future are secondary to the parent/child relationship.

What can grandparents or non parents do to get visitation when both parents are denying it?

In order to prove to the court that grandparents should get visitation against the parent’s wishes, the grandparents would have the burden of proving to the court that the child would suffer “actual harm” without the visitation. As you can probably imagine, this is a very difficult standard. How do you prove that, without your influence, some actual, substantial, measurable harm would result to the child?

What does actual harm actually mean?

That’s a good question. Actual harm means that the children would suffer without contact with their grandparents. It doesn’t just mean that the children’s lives would be better having their grandparents in it. It means that there would be actual damage to the children that would result from having their grandparents be excluded from their lives.

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

No. Whether you file a petition jointly with the non custodial parent, or whether you file a petition on your own, you’ll have to meet the actual harm standard.

Does it matter that the kids are spitefully being withheld from me?

Yes. The court will certainly look into the parent’s reasoning for denying visitation to the grandparents in question. If both parents agree that a certain set of grandparents is unfit to have visitation for some reason or another, the court will consider the parents feelings more seriously than if the custodial parent is just spitefully withholding the children from the child’s other parent’s parents.

That being said, though, you probably shouldn’t expect the court to look too carefully into the parent’s reasoning. Even if their reason for denying you visitation or deeming you unfit to have visitation seems weak or even completely fabricated to you, the court is likely to respect their opinion (particularly if both parents are united and share a similar opinion) and uphold their right to raise their children as they see fit.

What if the court doesn’t give me any visitation?

The good news is that anything regarding custody, visitation, or support of minor children is modifiable until the children are no longer minors (in Virginia, at the age of 18). If you lose your case for custody or visitation, you can re-petition the court as long as you have a material change in circumstances. Not only that, but if your case is decided at the juvenile court level, it is automatically appealable for a certain amount of time after the decision is rendered. Ask the court how long you have to appeal it so that you don’t miss any important deadlines. When you appeal a juvenile court case in Virginia, it goes to the circuit court automatically, and is heard de novo, which just means that you get a brand new trial. Nothing from the juvenile court is going to follow you up to the circuit court, so the circuit court judge will give your case a fresh look.

If you’re being denied access to kids with whom you formerly enjoyed a relationship, particularly if you’re a grandparent or a same sex parent, you don’t have much to lose by petitioning the court for visitation. If you’re not able to see the children now, the worst case scenario is that you’ll continue to not have visitation. Still, custody and visitation decisions are always modifiable, so you can have another shot later on, too. The decisions at the juvenile court level are appealable, so you can have two chances in one. You may wish to hire an attorney, either for the juvenile court or circuit court hearing, or for both. For more information about non parent rights, give our office a call at (757) 425-5200.