Custody and visitation

Grandparents often want formally specified visitation with their grandchildren, especially after a divorce. Sometimes, too, grandparents can even petition the court for custody of their grandchildren.

These cases are often very difficult cases because grandparents don’t really have rights to their grandchildren under the law like their parents do. There’s no “right” or “reasonable expectation” to visitation or parenting time with a grandchild, no matter how good or kind or well meaning the grandparent.

To “win” custody, parents use the “best interests of the child” standard. Grandparents, though, are held to a higher standard: “actual harm”. This makes it significantly more difficult for grandparents to get custody and/or visitation over a parent’s objection.

Ultimately, whether (or not) to allow grandparents parenting time is up to the parents, unless the grandparents can meet a VERY high standard: “actual harm”.

In order for grandparents to successfully petition the court for custody and/or visitation with their minor grandchildren, they would have to show that, without the parenting plan they suggest, actual harm would befall the child. We’re not just talking about a general “children need grandparents” kind of argument, either; we’re talking about actual, certain, measurable harm. There’s no question that it’s a really high burden to meet, and grandparents often aren’t able to meet it.

How can a grandparent show that the child would suffer actual harm without the grandparent’s involvement?

In cases where grandparents can meet the actual harm standard, it’s usually because something is very wrong with the parents – whether it’s drug or alcohol addictionabuse and neglect, or something else that means that they’re really unsuited to caring for the children and providing for their “best interests”.

It’s very difficult, without extenuating circumstances, for a grandparent to receive parenting time from the court.

What about when grandparents want visitation? The parents are still the primary custodians, but they’re keeping the grandparents away – and grandparents want time with their grandkids, too!

In these types of cases (ones where the parents retain custody), there are two types: cases where BOTH parents agree that the grandparents shouldn’t be around the children (or that the grandparent’s time should be limited or supervised, as determined by the parents), and cases where just ONE parent objects to a grandparent’s role in the child’s life.

When both parents agree about the grandparent’s involvement

When both parents agree, there’s very little that the court will do to overrule them. After all, it is a parent’s prerogative, however unkind or unfair it might seem to the grandparents, to parent as they see fit. Whether or not their view of an ideal childhood for their child includes grandparents, that’s up to the parent to decide.

This isn’t a value judgment about the grandparent(s) in question, either. A grandmother could be a veritable Mother Teresa figure in the community, and it wouldn’t have any bearing on the court’s decision. It is up to the parents to decide and, if both parents are united in their decision, it is very unlikely that the court would interfere.

When the parents disagree about the grandparent’s involvement

Of course, mom and dad are not always of one mind – especially if there’s a separation and/or divorce involved. It could be that, say, mom doesn’t want her mother in law to have parenting time, but dad doesn’t see the harm.

Even still, in this kind of case, it will be unlikely that the court will intervene. Again, we’re operating on the actual harm standard, which is a really high burden to meet.

In this kind of case, the court may find that dad can delegate some of his parenting time to grandma, if he likes – but the court probably will not take parenting time away from mom in order to give it to grandma. This usually isn’t so much of a concern if the parents are local and both parents have a fair amount of time. Whether grandma has her own designated visitation or just visits with the children while they’re in dad’s care, at least she has an opportunity to see them. It may not look the way she wishes it would look, but, hey – that’s grandparenthood.

It may be relevant if the child’s father is active duty military, or similar, and is deployable, or may spend a longer period of time away from home. There are some cases where that parenting time – the parenting time that dad would have had under the order if he was at home and not deployed – could be delegated to, say, a stepparent or a grandparent. It’s highly fact specific, though, and even in that case, dad might not wish to delegate the parenting time, because that would probably make it less likely that he would get his own lengthy makeup parenting time upon his return.

Are grandparents ever on equal footing with the child’s parents in Virginia courts?

It’s possible! So far, we’ve just talked about cases where grandparents are asking for custody and/or visitation.

The case is entirely different if the grandparents have already received in court (or been given in a custody agreement) custody. Once the grandparents have custody, they’re on equal footing with the child’s parents. Then, we don’t have to worry about the actual harm standard; it’s the same “best interests” standard that applies to the parents.

That’s why it’s always smart, if you take your grandchildren for any period of time, to get something in writing, if you can. In many cases, something is needed, anyway – whether to be able to take the children to the doctor and make medical decisions on their behalf, or for purposes of school enrollment – so you can approach it that way, like you just need something in order to be able to really take care of the children. But it can help you later on to have that documentation, especially if the parents willingly give custody to you!

As a grandparent, is it even worth fighting for custody and/or visitation in the Virginia courts?

That’s a highly individualized decision, and one you probably shouldn’t make without consulting with a licensed and experienced Virginia divorce and custody attorney. These types of cases are fact specific, and really dependent on the unique variables involved in your case.

These cases are hard, there’s no question – but it’s not impossible for a grandparent to get custody and/or visitation. We’ve seen it happen! And, if you feel your grandchildren are at risk, ultimately you may feel you have no other option.

There’s always the risk that the threat of litigation (or the actual litigation) can have the opposite effect to what you want; specifically, that it drives your grandchildren’s parents away, and makes them less likely to allow you time with your grandchildren. You have to weigh the possibility of this, on balance, and ultimately decide what the best course of action for you is, in your unique circumstances. But it does warrant consideration!

Not sure what to do? It can’t hurt to schedule an initial consultation, just to get an idea of what might happen in your grandparent custody and/or visitation case in Virginia.