Before I get really going here, let me just lead with the conclusion: Virginia is not a state that is particularly friendly to grandparents when it comes to custody and visitation. That doesn’t mean that grandparents can’t file and ask a court to grant them custody and/or visitation – actually, any non-parent third party could – but they are unlikely to win. That’s where we start.
Only parents have actual parental rights. Because of this, parents litigating custody and visitation must meet a “best interests of the child” standard. Whatever they’re asking for, parents must demonstrate to the court that it is in the best interests of the child. Both parents are on equal footing and the court has the authority to consider all forms of custody – whether primary physical, shared physical, or split physical custody. We do not have a law giving parents automatic 50/50 custody.
Whether we’re making an initial determination of custody and visitation or we’re modifying an already existing court order or custody agreement, the standard is the same: best interests of the child.
What does custody and visitation mean?
You can petition the court for custody, visitation, and/or child support as it relates to a minor child. Usually, it is parents filing for custody, visitation, and/or child support, but non parent third parties could file too.
Custody refers to both legal custody and physical custody.
Legal custody is the right to make three types of decisions on behalf of the child: non emergency medical care, religious upbringing, and education. This is usually jointly awarded between two coparents.
Physical custody refers to where the child spends his or her time. Physical custody can be awarded primarily to one parent, meaning that the lesser custodial parent (the parent who has the child less) has 89 or fewer days in a calendar year. It can also be shared, meaning that physical custody with each parent is somewhere between 90 days per year and 182.5 days per year. (Note that shared custody does not necessarily mean perfectly equal 50/50, though it could mean that.) Split physical custody is a situation where different custodial schedules apply to different children, kind of like in The Parent Trap.
Child support is awarded based off of whatever custodial arrangement is reached. Under primary physical custody, the maximum amount of child support is awarded. Once the parties share custody, though, child support is based off of a sliding scale, meaning that the more parenting time the lesser custodial parent has, the less he pays in support. (Is he asking for more parenting time to lower his child support obligation? Maybe.)
Why do you call it visitation and not parenting time?
Visitation is the legal word the court uses, so – when I’m talking about petitions for parenting time filed with the court – I use the language it uses.
I call it parenting time usually when I’m talking about the actual physical time each coparent spends with the child.
What happens when grandparents file for custody and visitation?
Everything stays the same. Grandparents file the same petitions – custody, visitation, and/or child support. They ask the court for what they want.
The difference, though, is the burden of proof. Parents must meet a “best interests of the child” standard. Non parent third parties, including grandparents, must meet an “actual harm” standard.
This is a much more difficult burden of proof. It means that the grandparents must demonstrate that actual harm will befall the child if the court doesn’t step in. Most of the time, grandparents cannot meet that standard.
Are there exceptions?
If a grandparent already has custody – either because they’ve won in court before or because a parent willingly gave them custody before and they have an agreement or court order to reflect this arrangement – then they’re on equal footing with the parent and must meet the “best interests of the child” standard.
If the grandparents in question don’t have custody, never had custody, and are just regular old grandparents, they’ll have to meet the actual harm standard. It’s quite a difficult thing to prove, that the child would experience actual harm without their involvement.
There’s also an exception in the case of the death or incapacity of a biological parent.
But I thought grandparents had rights!
They don’t really. Usually, how it works is that, if one parent wants their parents to see the kids, they allow it during their parenting time. Unless it violates a right of first refusal or the parties already have an agreement to not allow that person around the child, this usually suffices.
Grandparents generally have to stay in the good graces of their children to be permitted access to their grandchildren. That’s just the way it is. If the kids don’t want their parents to have access to the grandkids, that’s something the court takes seriously, especially if both parents are united in this belief. Otherwise, the “visitation” could take place during that parent’s parenting time.
If you’re a grandparent wanting more time with your grandchildren, I wouldn’t generally suggest using the court. Any chance you might have had to mend fences will likely be long gone if you go such a nuclear route. To me, it seems like the clear obvious exception is if you know actual harm will befall the child: like, your daughter and son-in-law are addicts who are not meeting the child’s needs on a regular basis.
If you’re a parent and your child’s grandparent is threatening to take you to court, I wouldn’t stress unless and until I saw an actual petition. At that point, you may want to take it seriously and even consider hiring counsel. You don’t need to, of course; many people at the juvenile court level manage to represent themselves, but if you’re worried an attorney can help you navigate the system.
For more information, to schedule a consultation, or to get a copy of our custody book for Virginia moms, give our office a call at 757-425-5200 or visit our website at hoflaw.com.