In this blog post, learn more from Strentz Greene & Coleman about what grandparents need to know when seeking custody or visitation of a grandchild.
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?
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:
However, anyone in the above listed categories may not be able to file for custody or visitation if:
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:
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.
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.
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.