In Virginia, individuals other than the parents of a child may be able to petition for custody and/or visitation of that child. Specifically, Virginia law allows a “person with a legitimate interest” to petition for custody and/or visitation. Persons with a legitimate interest include, but are not limited to “grandparents, step-grandparents, stepparents, former stepparents, blood relatives and family members.” Va. Code § 20-124.1.
In Troxel v. Granville, 530 U.S. 57 (2000), the United States Supreme Court recognized that the 14th Amendment afforded parents the constitutional right to direct the upbringing of their children. It follows that, in Virginia, there is a presumption that the best interests of a child will be served when they are in the custody of his or her parents. However, this presumption may be rebutted if a person with a legitimate interest can show one of the following by clear and convincing evidence:
- The parents are unfit at the time of the hearing;
- A court previously granted an order of divestiture;
- The parents voluntarily relinquished custody;
- The parents abandoned the child; or
- Special facts and circumstances constitute extraordinary reasons to take the child from the parents.
Bailes v. Sours, 231 Va. 96, 100 (1986). Much of the ligation involving grandparents’ rights concerns parental unfitness and the catchall, “special facts and circumstances.”
Factors to be considered in determining parental unfitness include “the parent’s misconduct that affects the child, neglect of the child, and a demonstrated unwillingness and inability to promote the emotional and physical well-being of the child. Other important considerations include the nature of the home environment and moral climate in which the child is to be raised.” Switzer v. Smith, 2001 Va. App. LEXIS 454, at *18-19 (Ct. App. July 31, 2001). The “moral climate” in which a child is to be raised is an ever-changing standard. In the past, the Courts have found that a parent was unfit due to an extramarital affair, though it is unlikely that a Court would make a similar finding today without other evidence suggesting parental unfitness. See, e.g., Higgins v. Higgins, 205 Va. 324 (1964); see also Forbes v. Haney, 204 Va. 712 (1963). However, it should be noted that Virginia law does require trial judges “to consider the extent to which the child is exposed to a parent’s romantic relationship and whether that relationship had an ‘adverse impact’ on the child.” A.O.V. v. J.R.V., 2007 Va. App. LEXIS 64, at *14 (Ct. App. Feb. 27, 2007).
Often, the issue of parental unfitness is considered in conjunction with “special facts and circumstances.” For example, in Florio v. Clark, the Court found that a father was previously an unfit parent and that “special facts and circumstances” provided a reason for the Court to award custody to the grandparents over the child’s biological father. 277 Va. 566 (2009). In making this determination, the Court noted that the father had an “extensive record of misdemeanor and traffic offenses.” Id. at 571. In that case, the father did not have his own residence, had no health insurance, and “had been ‘less than honest with the IRS’ and ‘less than forthright’ with the investigators appointed by the court.” Id. at 572. These factors, along with the active role that the grandparents’ had played in the child’s life, resulting in the custody being awarded to the grandparents over the father.
Once a grandparent successfully rebuts the presumption, he or she is not automatically awarded custody of the child. Rather, he or she simply stands equal footing with the parents. To be awarded custody, the grandparent must still prove that the child’s best interest is served by being with the grandparent pursuant to the factors set forth in Virginia Code § 20-124.3. Unlike the burden for overcoming the presumption regarding parental rights, the “best interests” factors must be proven by a preponderance of the evidence.
It can be a tricky process for grandparents or family to successfully obtain custody of a child. If you have questions about grandparent custody and/or visitation schedules and need assistance from someone with intimate knowledge Virginia civil law, please do not hesitate to contact our firm at 804-423-1382 or info@wmmlegal.com to schedule a one-on-one consultation with one of our experienced Virginia attorneys.
