Virginia addresses custody and visitation in the same set of statutes. In addition to parents, the statute allows a court to determine visitation for "persons of legitimate interest," including but not limited to grandparents, stepparents, former stepparents, blood relatives and family members. If the grandparent is the parent of an individual whose parental rights have been terminated, they are not considered a person of legitimate interest. Adoption also terminates a grandparents rights unless the adopting party is a stepparent.
When a court is asked to make a determination about custody or visitation , the court is instructed that the primary factor to be considered is the parent-child relationship. Before a court can award visitation to any other person of legitimate interest, such as a grandparent, the court must determine by clear and convincing evidence that the visitation is in the best interest of the child. The statue lists several factors to be considered in determining best interest, but some do not apply to grandparent visitation. The these factors include:
The age and physical and mental condition of the child, with consideration given to developmental needs
The age and physical and mental condition of each individual requesting visitation
The relationship between the individual and each child, with consideration given to their involvement and capability of meeting the emotional, intellectual and physical needs of the child
The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members
The role that the individual has played and will play in the future, in the upbringing and care of the child
The reasonable preference of the child, if the court deems the child able to express such a preference
Any history of family abuse
Any other factors deemed necessary and proper by the court.
The primary consideration for the court in any type of custody or visitation suit is what is best for the child. While no one doubts that having extended family involved with a child, it can be difficult to convince the court that it is in the child’s best interests to have visitation with a grandparent over the objection of the custodial parent.
If you are a grandparent who wants to seek visitation with a grandchild and the custodial parent is objecting, I may be able to help you. Contact me or give me a call today at 320-2010. We will set up a consultation to discuss your situation.