Grandparents' rights have been thrown around a lot more in recent years. I'm not sure what the reason is, however, it is becoming increasingly more abundant in family law. Whether it is custody or visitation, it is something that a good family law lawyer should know. As important, it is something that should be completely and thoroughly explained to any grandparent seeking custody and visitation. This post is intended to be a general overview and your specific situation may be different so please please please talk to a competent family law attorney for more specific advice.
Generally speaking, there is no such thing as "grandparents' rights" in Virginia. You are probably saying "Wait, that's not what the Internet or Google said" so let me explain what I mean.
The United States Supreme Court said in 2000 that parents, biological or adoptive, have fundamental Constitutional right to parent their children. This includes contact with relatives including grandparents. Rightly or wrongly, selfishly or properly, a parent can decide how often or even if a grandparent can be involved in a child's life. There are exceptions to this general rule as parents cannot make decisions that harm a child. Generally speaking, denying a child the opportunity to know and be involved with his or her grandparents is not harmful to a child. In other words - there is no fundamental rights for grandparents.
Now with that being said, there are steps a grandparent can take to be involved in a child's life. While there is no guarantee that a grandparent will get custody and/or visitation there are options. What I want to explain is what the Court looks at to determine if a grandparent will get custody and/or visitation.
The first thing that the Court looks at is the "standard" it is to apply when determining custody or visitation. The first question the Court has to ask and have answered is whether one or both of the biological parents agree to the custody or visitation. If both parents disagree, then the Court applies an "actual harm" standard. This means that the grandparents have to show that actual harm will come to the child if custody or visitation is denied. Admittedly, this is a very hard burden to meet and requires, usually, expert testimony (for example, a doctor). Actual harm does not include emotional harm from not getting to know the grandparents. It means, usually, actual physical harm. If the grandparents prove actual physical harm, well, it becomes easier for the Court, in my opinion, to make the determination because the Courts' obligations are to the child not the parents. If one parent disagrees and the other one agrees, then the Court looks at "the best interests" of the child. This is a very general term that is defined by the ten (10) statutory factors set out by the Code of Virginia (here is the link if you would like to read the factors). The grandparents have to prove "by clear and convincing evidence" that these factors are met and, therefore, it is in the best interests of the child. "Clear and convincing" is a difficult hurdle as well as, basically, the grandparents have to prove that it is highly and substantially more probable true than not and the Court must have a firm belief or conviction that it is true. This can be met but, honestly, it is not the easiest burden to meet.
For more information, feel free to visit our exclusive family law site for information on divorce, separation, child custody, child visitation, spousal support and child support at BrianThomasson.com.
I have handled many grandparents cases in my 20+ years as a lawyer. I am happy to meet with you to discuss your particular situation. There is no cost for the consultation. Give us a call at 757-454-2110.
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