Questions to Ask Yourself Before Filing a Petition

Before filing for custody or visitation for a child of which you are not the parent, you need to ask yourself (1) am I a person with a legitimate interest? (2) If so, does either parent of this child support your petition? (3) If not, am I prepared to hire an expert and spend a significant amount of money on this journey? (4) What are the next steps?

1. Am I a “ Person with a Legitimate Interest?”

In Virginia, if you are seeking custody or visitation of a child and you are not that child’s parent, you must be a “person with a legitimate interest” in order to file a petition with the court. So, what does that mean? Virginia Code §§ 16.1-241 and 20-124.1 state that a “person with a legitimate interest” includes but is not limited to:

1. Grandparents
2. Step-Grandparents
3. Stepparents
4. Former Stepparents
5. Blood Relatives
6. Family Members

However, anyone in the above listed categories may not be able to file for custody or visitation if:

1. Their parental rights have previously been terminated by a court.
2. Their interest in the child is through a person whose parental rights have been terminated by a court and the child has since been adopted (unless the child was adopted by a stepparent).
3. Anyone convicted of certain sex crimes that resulted in the birth of the child of which they are seeking custody or visitation.

2. Does Either Parent Support my Petition?

Whether one of the parents of this child supports your petition is an important question and can be a game changer. If one parent supports your request for custody or visitation, the burden you must meet in order to be successful is lower than the one you must meet if neither parent supports your petition. The legal burden you must meet if one parent supports your petition is laid out in Virginia Code § 20-124.2:  “The court shall 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.” See Dotson v. Hylton, 29 Va. App. 635, 639–40 (Va. Ct. App. 1999) for more discussion on this standard.

So what does that mean? The Virginia Court of Appeals describes this standard as “that measure or degree of proof which will produce in the mind of the [judge] a firm belief or conviction” that what you are trying to prove is true.  Griffin v. Griffin, 41 Va. App. 77, 85 (Va. Ct. App. 2003).

If neither parent supports your petition, your legal burden becomes much more difficult to meet, and is commonly referred to as the “actual harm” standard.  In Williams v. Williams, 256 Va. 19, 22 (1998), the Virginia Supreme Court established a two-step approach to cases that involve a custody or visitation dispute between a parent and a non-parent person with legitimate interest:

1. The court must first find that the child will suffer actual harm to their health or welfare if the visitation is denied; and next
2. The court must find by clear and convincing evidence that granting custody or visitation is in the child’s best interest.

The Virginia Court of Appeals has clarified that the “actual harm” standard is more than the “obvious observation that the child would benefit from the continuing emotional attachment with the non-parent.” Griffin, 41 Va. App. at 85.

3. Am I Prepared to Hire an Expert and Spend Significant Amounts of Money?

The “actual harm” standard is almost impossible to meet without an expert providing testimony of the harm the child will suffer without visitation or custody being awarded to the non-parent. This would generally be an expert that is qualified to conduct custody evaluations, parenting evaluations, and/or other types of evaluations focused on the physical and mental well being of the child. And, as I am sure the reader knows, experts cost money, in addition to the money you are already spending on an attorney.

4. What are the Next Steps?

Now that you have the basic information and you are ready to move forward with your petition, you should consult an attorney. This attorney should be familiar with the different standards described above and they should be prepared to discuss the involvement of an expert if neither parent supports your petition. They should also be very candid with you about your expectations throughout this process. While the “actual harm” standard is by no means an impossible burden, it is still an uphill battle for which your attorney should help you prepare.