Grandparents’ Custody in Virginia

It is becoming increasingly common that grandparents and great-grandparents are raising their grandchildren for a number of reasons, whether the parent is unable to care for the child, the parent has passed away or the parent has abandoned the child; Whatever, the reason may be, grandparents find themselves in another season of raising children whether voluntarily or out of necessity.  Often grandparents may wonder if they have any rights or if they can legally seek custody or visitation of their grandchildren. Under Virginia law, ⸹ 20-124.1, grand-parents are considered parties with a legitimate interest and can file a petition for custody of their grandchildren. Under Virginia law, a person with legitimate interest in the care and custody of a child can petition for custody. Bottoms v. Bottoms, 249 Va. 410, 413-414, 457 S.E.2d 102, 104 (1995).

Although the Virginia Code permits a grandparent to petition for custody, winning a custody battle against a child’s natural parent(s) can be very challenging. This is because the United States Supreme Court established that parents have a constitutional right to rearing their children and because Virginia law presumes that a child’s best interest is normally served when the natural parents maintain custody. Bailes v. Sours, 231 Va. 96, 340 S.E.2d 824 (1986); the best interest of the child is considered to be a paramount and controlling situation in all custody cases of minor children.  Mullen v. Mullen, 188 Va. 259, 269, 49 S.E.2d 349, 354 (1948)

In order for grandparents to prevail in a custody case with the natural parents of a child, grandparents must provide some showing by clear and convincing evidence of parental unfitness or certain other factors and that the grandparents can provide for the wellbeing of the child.  The legal presumption favoring natural parents can be rebutted by showing parental unfitness, previous order of divestiture, voluntary relinquishment, abandonment, and special facts and circumstances which justify taking a child from its parent or parents. Bailes v. Sours, 231 Va. 96, 340 S.E.2d 824 (1986)

This is a brief overview of the case strategies and law available to grandparents in the state of Virginia who are trying to obtain custody of their grandchildren. For more information regarding Fredericksburg third party custody and visitation and other family law related matters, please contact Fredericksburg Child Custody Attorney Tonya Gibbs, TNG Legal at general@tnglegal.com or by phone at 540-479-1966.