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I am seeking visitation with my grandchild. Can a court give me visitation? What do I have to prove?

The short answer is that, yes, Virginia law does recognize that "non-parents" can play indispensable roles in the lives of children and affords those non-parents the opportunity in some circumstances to obtain the same rights that a biological parent enjoys.

First, it is important to note that the United States Supreme Court has held that the right of parents to make decisions as to the care, custody, and control of their children is a fundamental liberty interest that is protected by the Constitution of the United States. Consequently, in order for a court to override the primacy of that parent-child relationship, it must typically be faced with fairly extraordinary circumstances and strong evidence in favor of the third-party seeking custodial or visitation rights. 

There is a Virginia statute (Va. Code ยง 20-124.2(B)), which states that the court may award custody or visitation of a child to any person with a "legitimate interest" who proves that the best interest of the child would be served by awarding that custody or visitation. Virginia law does not generally limit the parties who may seek custodial rights; a "person with a legitimate interest" can be a grandparent, current or former step parent, blood relative, extended family member, or even someone completely unrelated to the child. In fact, the term is so expansive that it is easier to identify who never has a legitimate interest: a parent whose rights have been terminated, an individual who only has a connection with the child through a parent whose parental rights have been terminated, or a biological parent who committed an act of sexual assault resulting in the conception of the child in question. In theory, any individual with a close and continuing relationship with the child and an active role in the child's care or upbringing could have a "legitimate interest."

Once a non-parent can establish that they have a legitimate interest in the child, the next question is whether that party is seeking to have custodial rights or to have visitation with the child. Generally speaking, visitation is access to and spending time with the child, whereas custody involves decision-making authority and a closer "parental" relationship. The standards involved are very different depending on what one is seeking, although there is some overlap in the kinds of factual circumstances that would allow a non-parent to have either or both. This post will discuss visitation specifically; a later post will address custodial rights.

If a non-parent is seeking visitation with a child, and the child's parents both object to that visitation, then the non-parent must prove that a child would suffer "actual harm" in the absence of that visitation. The standard is not whether the non-parent is or would be a better caregiver or has strengths that a parent does not have. It is also not enough just to prove that the child would benefit from the continuing emotional attachment with the non-parent. Additionally, that "actual" harm has to be proven by the heightened standard of "clear and convincing evidence."

For example, imagine if the parents forbade the child from seeing a grandparent who was a good positive influence on the child and who had a close emotional bond with the child. One can easily imagine how losing such a relationship could make the child sad and suffer from a sense of loss, which could be in some ways harmful. However, that is not what the law means by actual harm to the child's health or welfare. If it were, then any non-parent who has developed an enduring relationship with another child could easily be entitled to visitation, which would violate the parents' rights. Typically, we are talking about serious psychological or physical harm, the kind of which a mental health professional would attest to. In this same example, imagine if the parents were generally neglectful of the child, and the grandparent was the child's only real source of physical, emotional and academic support. Under those circumstances, a court might determine that the role the grandparent plays is so important to the child that the child would be harmed by not giving the grandparent access to the child.

A non-parent has a much easier standard to meet if the child's parents do not unite in objection to the non-parent's visitation. This would probably be unusual in an intact family, but not so strange where parents are separated or divorce. Where only one parent objects, the non-parent is not required to meet the "actual harm" standard explained above. Instead, the non-parent must prove that it is in the child's best interests that visitation be permitted. The "best interests of the child" standard is the same standard that the court applies in making custody and visitation decisions between a child's biological parents.

Virginia law and enumerates approximately a dozen categories of factors which the court is required to consider in determining the child's "best interests." The most important factors are typically the past and present role of an individual in the child's physical, emotional, and educational upbringing; the close and continuing relationship between the individual and the child; and the tendency of the individual to encourage the child's relationship with other custodians. As opposed to facing the clear and convincing evidence standard of the "actual harm" test, a party seeking visitation under the "best interests" standard must only prove their case by a preponderance of the evidence, a lower evidentiary standard.

What are some circumstances where one might anticipate seeing a third-party seek custody or visitation of a minor child? Examples of all the following can be found in Virginia case law:

  • A biological parent dies and the surviving parent will not allow the deceased parent's parents to spend time with their grandchild;
  • A family member raises a child for several years due to problems faced by the natural parents, and when the natural parents return to care for their child, they the family member to continue to see the child; and,
  • A step-parent aids in raising a child for a number of years, but the relationship with the biological parent ends and the biological parent forbids any further relationship with the step parent.

These are only a few examples of the many scenarios in which a non-parent may seek and could be granted some rights of visitation with a child. Please do not hesitate to contact an attorney at The Duff Law Firm to discuss whether your circumstances might be appropriate for visitation to be awarded to you.

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