When parents of a child decide to split up, grandparents can often be unsure of their role in the future with regards seeing their grandchildren. When parents of a child are in crisis themselves and unable to parent, grandparents may often be the next line of care for their grandchildren. Grandparents in Virginia need to be aware of their legal rights when it comes to the custody and visitation of their grandchildren.
Virginia recognizes parents as being superior to all others in terms of rearing their children, and accordingly there is a legal presumption that a child’s best interests are served when they are in the custody of their parent. For a grandparent to obtain custody of a grandchild over their son or daughter, or son or daughter in-law, the grandparent must rebut the legal presumption that the parent is the most fit. Virginia courts have found 5 circumstances in which a grandparent may successfully rebut the presumption: 1) parental unfitness; 2) a previous order of divestiture of custody; 3) a voluntary relinquishment of the child; 4) abandonment of the child, and 5) special facts and circumstances. Once a grandparent successfully rebuts the presumption, he or she must still prove that the child’s best interest is served by being with the grandparent per the factors set forth in Virginia Code § 20-124.3.
For a grandparent to petition for visitation, their burden before the court will depend on whether both parents of the child, or just one parent, objects to visitation. If both parents object to the grandparent’s visitation with the child, the grandparent must show that actual harm will occur to the child’s health or welfare if the child is not allowed visitation with the grandparent. Once the grandparent has shown actual harm would occur to the child, the court will still consider the best interests factors as noted above. If only one parent objects to visitation with the grandparent, the grandparent does not need to show actual harm, and the court can immediately consider the best interests for visitation.
It can be a tricky process for grandparents to navigate the waters of grandparent custody and visitation without legal help as the burdens of proof can be heavy and shifting within a single trial.
If you have questions about grandparent custody and visitation schedules, please contact Winslow & McCurry, PLLC, at 804-423- 1382 or info@wmmlegal.com
