Do Grandparents Have Visitation Rights in Virginia?

A look at grandparent visitation in Virginia.

By , Attorney · Brigham Young University J. Reuben Clark Law School
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In some families, grandparents play a special role, which can enrich a grandchild's life. When grandparents have established a healthy bond, courts may uphold their visitation rights. However, in Virginia, as in most states, grandparents' rights are secondary to a parent's. Parents have the right to raise their own children and decide with whom the children will exercise visitation.

A child's best interests are the central focus of any custody case. Grandparent visitation can't occur unless a judge determines that it would serve a child's best interests and certain factors are met. Each state has different rules governing grandparent visitation. It's important to understand grandparent visitation rights in your state before filing a court action. This article provides an overview of grandparent visitation in Virginia. If you have specific questions, contact a local family law attorney for advice.

Overview of Grandparent Visitation Laws

Courts presume that a parent is the best person to recognize a child's physical and emotional needs and make choices that serve the child's best interests. Yet, not all parents are able to recognize and meet a child's needs. In those cases, a grandparent may want to intervene.

Some form of grandparent rights are recognized in every state. However, there isn't any federal law regulating grandparent visitation. What this means is that each state has some nuances in its rules governing grandparent rights. The closest thing to a federal grandparent visitation law comes out of the U.S. Supreme Court case Troxel v. Granville. In Troxel, the Supreme Court upheld the constitutionality of a broad grandparent visitation law out of Washington. Although the Washington law was upheld, the Troxel case required a parent's preferences to be considered before awarding grandparent visitation. Also, under Troxel, grandparent visitation shouldn't interfere with a parent's basic rights. Some exceptions apply to the above rules if parents are deemed unfit.

Grandparent Visitation Rights in Virginia

In many cases, a grandparent who requests visitation with a grandchild will receive it. The primary question a judge will decide is how much visitation is appropriate. Virginia law allows a court to award visitation between a child and any person with a legitimate interest. This can include grandparents, step-grandparents, former step-grandparents, blood relatives and family members.

Before awarding grandparent visitation, a judge will examine the child's emotional and physical needs. In determining whether grandparent visitation is appropriate, a judge may consider a child's well-being, the parents' involvement in the child's life, the child's needs, the child's relationship with the grandparent, and any history of abuse by a parent or grandparent. A grandparent may receive visitation if it serves the child's best interests and doesn't substantially interfere with the parent-child relationship.

Specifically, in one Virginia case, a set of paternal grandparents sought but were denied visitation with their granddaughter. The child's parents were both fit parents and in a stable marriage. The grandparents previously had a close relationship with their granddaughter, but the child's parents severed ties. Ultimately, the court held that parents have the final say on a child's visitation with grandparents. A parent's wishes will outweigh a grandparent's request for visitation privileges, unless the grandparent can show that the child would be harmed without visitation.

In another Virginia case, a non-parent was denied visitation with a child even though he'd raised the child as his own son. An ex-husband sought visitation with his ex-wife's child that had been born during the couple's marriage. The ex-husband believed that the child was his and treated him as his own son until a paternity test confirmed that he wasn't the father. He sought visitation and lost because the child's mother objected. Even though the child would grieve his loss of emotional attachment to the ex-husband, it didn't amount to actual harm as required by the statue. What this means for grandparents is that the fact a child would miss the relationship with a grandparent isn't enough to justify visitation over a parent's objection.

When Can a Grandparent Obtain Custody of a Grandchild?

A grandparent may seek custody of a grandchild when the parent is deceased or unable to care for the child. However, a grandparent loses standing to seek custody of, or visitation with, a grandchild if the grandparent's interest in the child stems from a person whose parental rights are terminated. For example, if a grandparent's child loses parental rights to because of abuse or neglect, the grandparent can't seek visitation with the grandchild.

In one Virginia case, the court denied a grandfather's request for custody of his grandchild. The child's mother had died and the grandfather intervened to obtain full custody of the child. The court rejected the grandfather's request because it wouldn't serve the child's best interests. Because the child's father was able to emotionally and physically provide for the child, he was awarded full custody.

Can a Biological Grandparent Obtain Visitation with a Child Placed for Adoption?

Adoption terminates a grandparent's ability to seek custody of, or visitation with, a grandchild. When parents' rights are voluntarily or involuntarily terminated, a grandparent's rights are likewise terminated. Some exceptions exist in cases of stepparent or close relative adoptions. However, in any situation, grandparent visitation can't interfere with the parent-child relationship. A grandparent will only receive visitation privileges if it would clearly serve the child's best interests.

If you have additional questions about grandparent visitation or custody rights in Virginia, contact a local family law attorney for advice.

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