Grandparent’s Rights in Virginia: A Quick Guide

While the Virginia Code doesn't include a specific section on grandparent's rights, grandparents can still win visitation and custody in certain situations.
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by | Last updated Feb 20, 2020 | Published on Feb 20, 2020 | Virginia Family Law

The term “grandparent’s rights” generally refers to a grandparent’s legal right (or lack thereof) to visit or have custody over their grandchild.

Grandparent’s rights are a controversial area of law, and each state awards different rights to grandparents when it comes to the custody or visitation of their grandchildren.

Virginia, for example, has no set laws regarding a grandparent’s rights.

Instead, Virginia courts rely on interpretations of already existing laws and previous court decisions to decide such issues on a case-by-case basis.

In this article, we’ll quickly cover several factors that can affect a grandparent’s rights to visit their grandchild.

We’ll also discuss a few ways to potentially solve a dispute involving grandparent’s rights.

Grandparent’s Rights and Virginia Law

Senior grandparents and granddaughter gardening in the backyard garden. Man, woman and a small girl working.

As noted above, the Virginia Code does not include a specific “grandparent’s rights” statute.

Instead, many cases involving grandparent’s rights will cite three related laws in the Virginia Code’s child custody and visitation section:

  • Virginia Code § 20-124.1, which defines the legal term “person with a legitimate interest.”
  • Virginia Code § 20-124.2, which states that a person with a “legitimate interest” in the child may be awarded visitation or custody after a consideration of the best interests of the child.
  • Virginia Code § 20-124.3, which defines the 10 factors the judge will consider when determining the best interests of the child.

Let’s unpack each of these sections a little bit.

How does the court define a “person with a legitimate interest”?

The Virginia Code is actually quite clear on this point:

“‘Person with a legitimate interest’ shall be broadly construed and includes, but is not limited to, grandparents, step-grandparents, stepparents, former stepparents, blood relatives, and family members provided any such party has intervened in the suit or is otherwise properly before the court. The term shall be broadly construed to accommodate the best interest of the child.”

Virginia Code § 20-124.1. Definitions for Custody and Visitation Arrangements for Minor Children

By specifically noting that both grandparents and step-grandparents can have a legitimate interest in the child’s life (provided they make their intentions known to the court), this code section allows these family members to petition for custody or visitation under the next code section.

Who can the court award custody or visitation to?

Again, the Virginia Code is quite clear.

Basically, judges can award custody or visitation to anyone with a “legitimate interest” in the child’s well-being.

Specifically:

“[When] determining custody, the court shall give primary consideration to the best interests of the child … The court shall [also] give due regard to the primacy of the parent-child relationship, but may, upon a showing by clear and convincing evidence that the best interest of the child would be served, thereby award custody or visitation to any other person with a legitimate interest.”

Virginia Code § 20-124.2(B). Court Ordered Custody and Visitation Arrangements

Basically, this code section does three things:

  • States that the court will give primary consideration to the best interests of the child (as defined in the next section).
  • Notes that the parent-child relationship should be considered before any other relationships, but after determining the best interests of the child.
  • Notes that, by showing clear and convincing evidence that their presence will benefit the child, anyone with a legitimate interest may petition for custody or visitation.

As you can see, the most important factors in such cases are the “best interests of the child,” which are covered in the following code section.

How do judges determine the “best interests of the child”?

The Virginia Code specifically notes 10 factors that judges must take into account when determining the best interests of the child for child custody and visitation arrangements:

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.

Virginia Code § 124.3. Best Interests of the Child

Especially when determining whether or not to award custody or visitation rights to a grandparent, the judge must take all of these factors into account.

Grandparent’s Rights in Practice: What to Watch Out For

Grandfather Carries Grandson On Shoulders During Walk In Park

Taking these three laws into account, there are several situations where custody, visitation, and other parental and grandparental rights may be called into question.

Death, divorce, remarriage, adoption, illness, incarceration, and general feelings of exclusion are all common examples of situations that may lead a parent or grandparent to fight for their custody and visitation rights.

In the contexts of grandparent’s rights specifically, such a contest would have to follow both the Virginia-specific laws above.

It must also remain generally compliant with the 2000 Supreme Court decision in the matter of Troxel v. Granville, as well as all of the resulting case law.

This SCOTUS case effectively presumes that parental rights overshadow grandparent’s rights (hence the primacy of the parent-child relationship note above).

For these reasons (and more), there are several things to look out for in cases involving grandparent’s rights.

Custody vs. Visitation: A Difference in Scale

As noted above, the Virginia Code recognizes grandparents as individuals with a legitimate interest in the welfare of their grandchildren.

Because of this, grandparents can request both visitation and custody in cases where they feel that their rights are being infringed upon.

However, there is a stark difference in scale between a grandparent requesting a simple visitation order and a grandparent arguing for custody over their grandchild.

In general, Virginia judges will grant limited visitation to grandparents unless such visits are seen as harmful to the child.

However, judges will only award custody to grandparents in cases where one or both parents are incapacitated or unfit in some way.

For example, if one or both parents are incarcerated or injured to the point where they cannot take care of the child, the court may consider granting custody to the grandparent if such a decision would be in the best interests of the child.

Parental Presumptions in Virginia

As we noted above, parental rights are always “primary” in regards to custody and visitation decisions.

In practice, this means that the opinions of the parents almost always supersede the claims of the grandparents in Virginia custody and visitation battles.

When a grandparent is looking to gain custody of, or visitation rights to, their grandchild, for example, they must show “clear and convincing evidence” that such a decision is in the best interests of the child.

In a custody battle, there are five general circumstances in which another guardian (such as a grandparent) may be chosen above the natural or adoptive parents (as noted in Bailes v. Sours):

  • Parental Unfitness – If one or both parents are unfit to maintain custody of their children (such as if they are incarcerated), then a court may grant custody to an interested party.
  • Previous Order of Divestiture – If the children were previously taken away from their parents for some reason.
  • Voluntary Relinquishment of Custody – If the parent voluntarily gives up their right to custody, the court may award custody to another interested party.
  • Abandonment – The court will likely award custody to another interested party if the parents legally abandon their child.
  • Special Circumstances – Or, as noted in Bailes (which is further citing a previous case from 1973), “special facts and circumstances … constituting an extraordinary reason for taking a child from its parent, or parents.”

Outside of these five circumstances, the parents will often retain custody rights even if challenged by a grandparent with a legitimate interest.

The same is often true for visitation, as the court will often side with the parents if they feel that a visitation order for a grandparent would go against the best interests of the child.

The only way to get around this fact is to show that the child would experience “actual harm” by losing contact with their grandparent.

As you might imagine, doing so is very difficult, and often requires the assistance of a skilled attorney.

Mediation as the Preferable Alternative

As you can probably tell from the sections above, grandparents in Virginia must meet several rather stringent requirements if they want to request a custody or visitation order from the court.

However, while going to court may be the first option you think about, it’s often a better idea to try an alternative dispute resolution solution first.

For example, many differences of opinion can be resolved through mediation, while solutions such as arbitration are often both cheaper and quicker than appearing in front of a judge.

Remember, children don’t like it when they have to watch their parents fight their grandparents in court.

Setting boundaries and guidelines in mediation can create a preferable middle ground for each party, and can help keep the entire process more civil.

Conclusion

Happy Great Grandfather and Grandson Fishing Together

Overall, grandparent’s rights are a complex (and contentious) area of law that often relies on previous court decisions rather than hard-encoded statutes.

Because of this, many attorneys will recommend mediation before the parties take each other to court.

All grandparents seeking visitation, and especially custody, of their grandchildren should consult with an attorney who has experience in grandparent’s rights cases.

Similarly, all parents who are involved in cases where grandparents are requesting custody or visitation should speak with an attorney immediately about possible defenses to such claims.

In either cases, the process will be both emotionally draining and legally difficult, and having an attorney to sort through the legal issues will make the process go more smoothly and, hopefully, quickly.

Further Reading:

Other Resources:

  • Troxel v. Granville – This is the SCOTUS decision that largely settled the grandparent’s rights question at the federal level.
  • Bailes v. Sours – This is an often-cited Virginia Supreme Court case from 1986 that notes the five factors that can override the parental presumption of custody.
  • Virginia Code § 20-124.1 – This is the Code section that defines the legal terms “joint custody,” “sole custody,” and “person with a legitimate interest.”
  • Virginia Code § 20-124.2 – This is the Code section that sets Virginia’s rules for court-ordered custody and visitation arrangements.
  • Virginia Code § 20-124.3 – This is the Code section that sets the standard for the “best interests of the child” in regards to court-ordered visitation.

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James Williams

James focuses his practice on intellectual property law and family law. He is excited to assist artists, business owners, and content creators with all of their trademark and copyright concerns.

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