It is a well known fact that grandparents are often actively and intimately involved in the lives of their grandchildren. Their roles often increase when the parents of their grandchildren are separated. Grandparents may transform into the daycare providers, character witnesses, visitation supervisors, and the list goes on.
In light of their involvement, grandparents are often concerned about the welfare of their grandchildren and ask us about their legal rights pertaining to custody and visitation. Because of the interest surrounding this topic, we felt it would be appropriate to post some general information. This post is not intended to offer legal advice. Every circumstance is unique and you should speak with an experienced family law attorney for specific advice.
Grandparents Can File Petitions for Custody and Visitation in Virginia
Virginia Code Section 16.1-241 gives Virginia Juvenile and Domestic Relations Courts jurisdiction to handle child custody and visitation matters. While the legislature has not yet set forth a statute dedicated to grandparent’s custody and visitation rights, petitions for child custody and visitation can be filed by any person with a “legitimate interest”—this phrase generally includes grandparents, stepparents, other blood relatives, among others. However, in our experience, most grandparents and other third parties are often unaware of the difficult legal hurdles they must leap in order to actually prevail on a child custody or visitation petition.
Biological Parents are Presumed to be the Best Custodians
Although grandparents and third-parties are able to file petitions for custody or visitation, the law affords the biological parents a tremendous amount of protection. The law generally presumes that the biological parents of a child are the best custodians and the best decision-makers regarding who the child should visit with.
Burden of Proof is on Grandparents
This parental presumption can be overcome in certain circumstances with compelling evidence. The grandparents will bear the heavy burden of proof and must meet that burden to succeed.
It is important to note that the burden of proof may differ depending on the type of case and the circumstances. The burden in custody cases is different from that in visitation cases. There are also often different burdens in cases when only one biological parent objects to the grandparents petition, as opposed to cases when both parents object.
In sum, grandparents and third parties are often permitted to pursue child custody and visitation in Virginia Juvenile Courts. However, if you are involved in such a case, it is important to speak with a skilled family law attorney.
The Virginia family law attorneys at BoykoNapier have experience handling grandparent and third party custody and visitation cases. We handle cases throughout Central Virginia, including Richmond, Henrico, Chesterfield and Hanover counties. If you have questions regarding child custody and visitation, or any other family law issues, contact BoykoNapier today at (804) 658-3418, or via email.