Custody and visitation

Non Parents are, really, anyone who isn’t a biological or adoptive parent of a child in Virginia. In this categorization, we are including step-parents and extended family members (aunts, uncles, cousins, whatever). It could also include friends who are so close they’re “like” family, but I think that this would be an even harder road to hoe, so to speak, in terms of custody litigation without that biological bond.

We already talked a bit about grandparent visitation, because that’s probably the most common non-parent type of petition for custody and visitation we see.

To “win” custody, parents use the “best interests of the child” standard. Non-parents, 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.

Non-parents are a pretty wide reaching category, and we’ve seen a number of different types of cases under this classification.

We see stepparents and family members who, for one reason or another, petition for custody and or visitation of their step kids. Sometimes, it happens because the child’s biological parent is facing a deployment, and the stepparent wants to keep up the same parenting schedule so that the child can visit with their half-siblings in the other parent’s absence. An aunt or an uncle may wish to do the same thing, to keep the child closer to cousins, grandparents, and other extended family on the opposite site of the family tree from the then-custodial parent.

In other cases, the stepparent wants to continue to have access to the child, even after she has broken up with or divorced the child’s biological parent.

Sometimes, too, a stepparent, relative, or other family friend actually wants custody, usually because the biological parent(s) are unable or unwilling to have custody, whether through drug or alcohol addictionabuse and neglect, or some other scenario.

Non-parents, like grandparents, must meet the actual harm standard to “win” custody and/or visitation in the Virginia courts.

The same standard applies here as to grandparents, though. Between parents, the standard for “winning” custody is the best interests of the child. Between a parent and a non-parent, though, the non-parent will have to demonstrate that “actual harm” will befall the child if the requested custody and visitation isn’t implemented.

How would a non-parent prove actual harm?

Actual harm is specific, provable harm to the child – not just the abstract harm of not knowing one side of his family, or not having sufficient access to family on one side. We’re talking about measurable, certain, specific trauma that is certain to befall the child.

Is it hard to prove actual harm? Yes. Significantly more difficult than arguing over what’s in the child’s best interests. As a non parent, the standard for you is harder. In general, the court supports the authority of parents to raise their children as they see fit, including giving them the right to exclude or minimize the presence of family members that they deem inappropriate for the children to be around.

You’ll probably need to be able to prove that, because of the circumstances, the parents won’t be able to meet the children’s needs – that they’ll be abused, neglected, or mistreated in some way. You should know, too, that the court doesn’t act preemptively; it’s probably safe to say that you’ll need to demonstrate that something of this type has happened before, that the children suffered, and that this type of harm is sure to happen again if you don’t get the parenting time or custody arrangement that you’re asking for. On the one hand, it’s terrible – we have to wait until a child is suffering before the court will do anything. But, on the other hand, we can’t really take a child away from a parent because something “might” happen. That would be egregious. (Imagine, here, how you’d feel if you were the biological parent!)

What happens when a non parent just wants visitation?

Custody is one thing, but visitation (or parenting time) is another.

Mostly, I say that the courts use “parenting time” now instead of visitation to support the non custodial parent and to decline to characterize time parenting as “visiting”. In this sense, though, I think parenting time is an even more apt description, because the act of “parenting” is usually something that is within the province of the parents.

It’s one thing to want more time with your niece or nephew or stepchild; it’s another thing for the court to award it to you.

Even amongst these types of cases, there are types: specifically, the kind where the parents are both in agreement that the non parent in question should not have visitation with the child, and the type where only one parent disagrees with it.

When BOTH parents agree that a non parent should not have time with the child

In the first scenario, it’s very unlikely that you will be successful petitioning the court for custody and/or visitation. When two parents agree that someone should not be around their child, whether rightly or wrongly, the court supports their right to assert this. It’s a parent’s prerogative to choose with whom they allow their children to associate.

It’s not a question of who you are as a human being, either; you could be the kindest, most generous and most wonderful person that anyone has ever met, and the rules would still be the same. It’s not a judgment of YOU; it’s an effort by the court to support parents’ and their rights to determine for themselves what is best for their children. Barring some awful circumstances, most of us do believe that parents know best, or, failing that, that they’re trying their best. And, without more, the court won’t interfere with their right to determine.

When the parents disagree about a non-parental involvement

Moms and dads don’t always agree – that’s why we have divorce and custody cases at all, right? So it’s possible that, say, mom doesn’t want you to have anything to do with the child, but dad doesn’t see the harm.

You could petition the court for custody or visitation, but you’re still up against the whole ‘actual harm’ standard thing. While it’s probably still very unlikely that the court would interfere and award you custody and/or visitation specifically, it is possible that the child’s other parent could delegate some of his or her time to you. This is especially true in the case of a parent who is, say, in the military and facing a deployment. As a stepparent or an aunt or other family member, it might be really important for you to have access to the child during the deployment, especially if it means that the child can maintain a lot of important relationships. The court is much more likely to allow dad to delegate that time to someone else than it is to take time away from either parent under the custody order.

It’s highly fact specific, though, and even if he might otherwise be willing to delegate his parenting time, dad might not wish to because it may make it less likely that he would get his own lengthy makeup parenting time upon his return.

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

It can happen.

If you’ve already been awarded custody of the children in question, then you take on equal footing with the children’s biological parents. Instead of having to meet the actual harm standard, you’d level the playing field and would both have to make arguments about what’s in the child’s best interests.

That’s why it’s always a good idea, if you take a stepchild or niece or nephew in for a period of time, to get it in writing. You may need it in writing, anyway, if you want to enroll the child in school or need to be able to seek medical treatment. That writing can be very beneficial for you, later, if you have to petition for custody and/or visitation.

Is there a chance that by filing for custody and/or visitation, I could make things worse?

Well, yeah. Of course there is. It’s actually a very real consideration, and one I’d urge you to take seriously.

It’s always a question of weighing advantages and disadvantages, and there are very few things that sour relationships (especially already fairly strained relationships) like the threat of litigation.

If you feel like the children in question are in danger, you may feel you have no choice – but keep in mind that these are risky scenarios, especially if you’re trying to meet an actual harm standard. The worst case scenario might involve the child’s parents doing even more to keep you from the child – so certainly well worth considering the implications of your actions, however well intentioned.

Do you represent non-parents and grandparents, or just Virginia moms?

That’s a good question! We represent women only, but that doesn’t mean mothers only. We would also represent a grandmother, an aunt, a stepmother, or other related or unrelated woman with an interest in the litigation.

A set of grandparents, or a stepmother who happens to be married to the children’s biological father (or married to a different man altogether) would be fine – though we wouldn’t represent the grandmother or husband in this scenario.

We represent one party, and one party only – so we wouldn’t be able to include grandpa in that representation. While grandpa may feel adequately represented in this fashion (if grandma’s interests are served, then so too could his be), he also may not – so it is a conversation worth having.