Grandparents Rights to Custody: A Guide for Grandma

If you’re a grandparent and you’re seeking custody or visitation rights for your grandchild(ren), you’re not alone. Even though in many parents the grandparents work alongside the parents, providing extra help in the home, acting as stand-in nanny, and shuttling the kids to and from school, daycare, and their various activities, it’s not always that way.

For many reasons (good, bad, and otherwise), the child’s parents may not wish for you to have further involvement. We hear complaints from grandparents for any number of reasons. Maybe you never had a good relationship with your son or daughter; maybe, on the other hand, your son or daughter’s divorce has affected your relationship. Maybe, instead, the divorce has made your son or daughter-in-law more resistant to your presence in the child’s life, for whatever reason. Maybe you don’t agree with your son or daughter’s lifestyle choices (maybe they’ve done jail time or had a drug problem), and don’t think they’re really fit parents.

Still, you love your grandchild. You love your son or daughter, too, of course, but you mostly want to do whatever it takes to ensure that you’re able to continue to maintain your relationship with your grandchild. Kids are funny like that; they exert such a strong emotional pull on our hearts, and we feel driven to protect them. Changing family dynamics can cause a lot of problems. Whether it’s a death in the family, a divorce, or even a major relocation, not being able to have the type of relationship with your grandchild that you’ve always imagined is difficult.

You’re probably wondering what rights grandparents have in Virginia. Surely your son or daughter (or son or daughter in law) doesn’t have the freedom to just keep the child away from you? Surely the court recognizes the importance of grandparents in a child’s life?

The thing is, though, that when it comes to grandparents, it’s a little tricky. The court (and the law) really does respect parent’s rights. In their view, parents have the right to bring up their child however they choose (provided that it’s not abusive, neglectful, or illegal), and, by extension, have a fair amount of control over the people with whom they allow the child to associate. That doesn’t mean, of course, that all is lost. Plenty of grandparents have petitioned the court for custody or visitation rights to their grandchild and have won. But what do you need to know to attempt to get custody or visitation rights? Where should you start? How on earth does the court make these types of decisions at all?

To start, let’s talk about the best interests of the child—the standard that the court uses to make decisions regarding custody and visitation.

Best Interests of the Child

When it comes to minor children, it’s up to the courts to make a lot of decisions regarding their care and upbringing. When these types of issues are properly brought before the court (like in custody and visitation petitions), the court has a lot of freedom to make decisions.

How does the court decide?

Courts all across the country use some variation of the “best interests of the child” test to determine what’s appropriate in terms of custody and visitation. In Virginia, we have ten specific factors that the court uses to help it determine what is in the best interests of a child. So, if you’re gearing up for a custody case, it doesn’t matter whether you’re a parent, a grandparent, or a non parent, the first thing you should do is to brush up on these factors, and then 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.
When the court makes decisions about custody and visitation, these ten items are the only things that matter. It’s a good idea to be familiar with them, and be capable of making arguments that support your position that you deserve custody or visitation with your grandchild using these factors. In fact, if you’re preparing for a custody case, it should be built around these factors. The factors aren’t the only thing that matters, but they’re pretty critically important. What else matters? Let’s discuss.

Grandparent Visitation

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.

As a grandparent, you have two options as far as it relates to petitioning the court for custody or visitation. You can (1) 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. If you and your son or daughter is the non custodial parent (the parent who has less time with the children), you can also (2) petition together. Of course, that’s assuming that you and your son or daughter are of the same mind when it comes to custody, which isn’t always the case. In some cases, we see grandparents that are fighting directly with their sons and daughters over their custody cases; it’s not necessarily the son or daughter in law that makes the trouble. Most of the time, we see grandparents petitioning on their own, not jointly with the non custodial parent.

Petitions with the non custodial parent

If you and your son or daughter agree with respect to custody, you may choose to file together. We see this happen fairly frequently; 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 standalone, 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.)

What does this situation look like? Well, usually as a result of the breakdown of the marriage, the custodial parent’s (the parent who has the children most of the time) relationship with his or her in laws deteriorates, too. He or she then starts to keep the children away from the non custodial parent and then, by extension, also from the grandparents. Sometimes, it’s intentional, and the custodial parent really means to restrict the grandparents access to the children. Other times, it’s really only out of a desire to restrict the non custodial parent’s access to the child. Either way, it might not feel much different to you, but it may make a difference in the long run. (If the non-custodial parent’s objection isn’t to you, personally, you may be able to work something out between you later, without going to court.) In these types of cases, 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)

In other situations, especially where you and your son or daughter DON’T see eye to eye when it comes to custody and visitation, you may find it necessary to petition for custody or visitation (or both) on your own, even without an underlying divorce action.

What does this situation look like? Sometimes, for whatever reason, BOTH of the child’s biological parents are united in a desire to keep the child away from the grandparents. In other cases, because of a death of one parent, the child’s other parent will try to exclude grandparents. Sometimes, relocation makes it difficult for grandparents to have the time with the children that they believe they deserve, which will drive them to file for visitation. When one parent is in jail or rehab, we sometimes see grandparents filing for custody or visitation. Other times, there’s a major issue regarding parental fitness—one or both of the parents may be involved with drugs, alcohol, or criminal activity, or may be abusing or neglecting the children. Most of the time, though, we see parents and grandparents who just don’t get along, or generaly don’t approve of each other, and they’re worried about the negative influence that the other will cause in the child’s life. In these types of cases, grandparents may choose to file their own independent petition to formally ask the court for more time to spend with the children.

As you can probably imagine, these types of cases are some of the more difficult custody cases to win. Courts automatically give preference to the child’s parents in a lot of respects. Why? Well, mostly because parents have the right to determine how they’d like their children to be raised, and a big part of that has to do with what and whom they allow the children to be influenced by and associate with. It may seem harmless to you, especially since you know full well that your only interest is the best interests of the child (there’s that phrase again), but the law does allow parents to make these types of decisions on behalf of their children.

In Virginia, custodial parents, unless they’ve been judged to be unfit for some reason, have the right to make decisions regarding the care and upbringing of their children. Grandparents have rights (like we said, grandparents are persons with “legitimate interests” when it comes to minor children in Virginia), 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.

Notice that I called them “custodial” parents, and not “biological” parents. What we’re talking about here may or may not have anything at all to do with whether the child biologically belongs to the parents. Though that is generally the case, it doesn’t necessarily have to be. A “custodial” parent is whoever has custody (legal and physical) of the child. A biological parent could have his or her parental rights terminated, and then they wouldn’t have any rights to the child at all. What matters here is who has custody.

Most of the time, the Virginia courts are pretty “hands off” when it comes to these types of cases. If parents have made a joint decision to keep the grandparents 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 grandparents 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 grandparent 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. In order to prove to the court that you should get visitation against the parent’s wishes, you 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? 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 your grandchild’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 your son or daughter will allow you to have visitation, it’s just your son or daughter in law who won’t allow it?

Usually, grandparents 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 grandparents, those visits can take place during that parent’s parenting time. So, if, for example, your son has every other weekend, you wouldn’t have specifically designated time, but he could let you, say, take the kids to the circus on one of his Saturdays.

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.

Is this a different standard than if a petition was filed jointly with the non custodial parent?
No. It doesn’t matter whether you file a petition jointly with the non custodial parent or whether you file your custody and visitation petitions on your own. You’ll still have to meet the actual harm standard. Sorry.

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

Yes. If your grandchildren are being spitefully withheld from you, the court will consider your testimony. It definitely matters why visitation is being denied. If, however, both parents agree that a certain set of grandparents, or a specific grandparent, is unfit to have visitation for some reason or another, the court will probably take those feelings very seriously. If it seems as though the behavior is spiteful, that’s less important. Still, the primacy of the parent/child relationship will likely be respected, again, unless you can demonstrate actual harm.

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 until the child becomes a legal adult. 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, 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.

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