Erica Baez Law

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What rights do you have as a grandparent to court-ordered custody or visitation with your grandchildren?

by | Apr 2, 2019 | Family Law

Most people understand and appreciate that both parents of a child have a constitutional right to raise their children without interference from third parties. However, children often have important family relationships with grandparents, cousins, aunts and uncles, and other extended family members that play a large role as they grow up. There are occasions, particularly after a nasty divorce or break-up, where one parent has passed away and the deceased parent’s relatives find themselves being unable to see the child. What can be done in this situation? Do grandparents (or other extended family members) have any rights?

The short answer is yes. Any person with a “legitimate interest” may file for custody or visitation of a child. This is a broad category that includes grandparents, step-grandparents, step-parents, former step-parents, blood relatives. Almost anyone within the child’s family circle, whether blood related or not, could potentially file for custody or visitation.

What must a grandparent show to the court in order to obtain custody or visitation rights against a parent who objects? It depends on the facts of any given case.  It’s important to understand that parental rights are protected and safeguarded by the U.S. and Virginia constitutions. It is a constitutional right as a parent to decide who gets to see your children or make any important decisions regarding their well-being.

The Virginia general assembly has given parents another layer of protection by adding what is called the “parental presumption”. This presumption must be overcome prior to the Court even considering giving any custody rights to a grandparent or relative. Usually, a Court must find parental unfitness, an act of abandonment, voluntary relinquishment, a previous order divesting the parent of custodial rights, or an extraordinary reason to take the child from the parents. If the presumption is overcome, the Court will evaluate the best interests of the child to decide who gets custodial rights.

What if a grandparent is not looking for custody, but for visitation rights? This is an altogether different analysis. Usually, in order for a court to award visitation rights to a third party over the parents’ objections, the third party will have to show to the court that actual harm will result to the child if visitation is denied. Even if you believe your grandchildren are sad or upset that they are unable to see you, this is usually not sufficient. In many instances, proving harm to the children by denying visitation will require expert testimony from a psychologist. However this burden does not always apply and is dependent on the facts of the case.

Grandparent or other third party custody and visitation cases are complicated, and you should speak with competent counsel before filing for custody or visitation. To find out more, contact our firm today. Yo hablo Español.

This post is provided as an educational service and should not be construed as legal advice. Readers in need of assistance with a legal matter should retain the services of competent counsel.