Can a family member file for custody or visitation of a child in Virginia?

In Virginia, a person “with a legitimate interest” may file a petition for custody or visitation.

Who is a Family Member that Can File for Custody or Visitation?

Persons with a legitimate interest includes grandparents, step-grandparents, stepparents, former stepparents, blood relatives and other family members (i.e. adult siblings, aunts, and uncles).

The court will not consider a person to have a legitimate interest if that person is a party whose parental rights have been terminated by court order; a party whose interest in the child derives from an individual whose parental rights have been terminated; or an individual who has been convicted of a sexual offense against the child who is the subject of the petition.

Best Interests of a Child in Virginia and Family Members

The Supreme Court recognizes that the child’s best interests are served when in the custody of his/her biological parent. In Virginia, custody and visitation is ordinarily determined by the best interests factors enumerated in Virginia Code Section 20-124.3. However, a nonparent party must meet a higher standard to obtain custody or visitation.

What Do You Need to Demonstrate to the Court in Virginia?

In third-party custody cases, a person with legitimate interest must demonstrate that the parent(s) is/are unfit to have custody of the child, that the child has been abandoned by the parent(s), that the parent(s) have otherwise relinquished custody of the child, or, based on other special facts and circumstances, there are extraordinary reasons to take a child away from his/her parent.

Can a Parent be Considered Unfit for Custody?

While a relative may feel a parent is clearly unfit, proving a parent is unfit is a difficult burden. Unfitness must be proven by clear and convincing evidence.

Some examples of unfitness may include cases where a parent’s behavior or physical/mental condition has caused him/her to neglect the child’s physical, mental, or emotional needs; the parent has subjected the child to physical abuse; a parent has a severe alcohol or drug addiction; or where a parent’s future is uncertain due to an impending prison sentence.

Visitation has a Different Standard in Virginia

A different standard applies in third-party visitation cases. The court will recognize a parent’s fundamental right to parent his/her child and decide visitation with other family members.

When one parent agrees with a third party having visitation with his/her child, the third party is only required to show that his/her visitation is in the child’s best interests.

However, where both parents object to the visitation or one or both do not otherwise provide their consent, a third party must demonstrate that the child would suffer actual harm if the request for visitation is denied. The testimony of an expert may be required to demonstrate that a child will suffer actual harm.

Choosing the Right Strategy

It is also crucial for a parent to understand the implications that come with an agreement or court order granting visitation to a third party.

In most circumstances, upon a request to modify custody or visitation to a third party, the nonparent will no longer have to rebut the parental presumption.

In other words, the nonparent and parent(s) will be on a level playing field and the court will determine custody/visitation upon the best interests of the child.

Should you Get Advice from an Experienced Family Law Attorney?

Rulings in third party custody and visitation cases are extremely case specific, so it is important to discuss, with an attorney, the facts and circumstances lending an individual, other than a biological parent, to petition for custody and visitation of a child.