Third Party Rights to Child Custody and Visitation in Virginia

 

This guest post is from Marianna Nimmo, Regent Family Law student:

Relationships Matter—But it's Not about You - It's about the Child

 There are many reasons a third party may desire to establish visitation or even custody of a minor child:

·        Grandparents may desire continued visitation with a grandchild they have bonded with over a long period of time;

·        Former Stepparents may desire visitation with their former step-children after living with the child during the formative years of the child’s life; and

·        Other blood relatives may seek physical custody of a child from parents who are not currently fit to take care of their children.

Thankfully, Virginia has recognized that children can and do form close relationships with people other than their biological parents—relationships that if suddenly prohibited may cause severe emotional and physical distress to the child. Imagine a child who stayed with their grandparents every day after school being told by their parents that they are no longer permitted to see their grandparents. Sadly, this would result in a confused child caught in the crossfire of an adult disagreement which is precisely why Virginia has codified the right of “Persons with a Legitimate Interest” to petition the court for custody and visitation rights. It is important to remember that this right does not stem from the distress a “person with a legitimate interest” may face due to a severed relationship, but rather the harm the child faces evaluated by the court under the “best interest of the child standard.”

Who is a “Person with a Legitimate Interest?”

          Per VA Code § 20-124.1, a “Person with a Legitimate Interest” may include:

·        Grandparents;

·        Stepparents;

·        Former Stepparents;

·        Blood relatives; and

·        Family members such as: Aunts, Uncles, or Adult siblings.

However, the court will broadly construe the term “Person with a Legitimate Interest” broadly; meaning that the list above is not conclusive in dictating which third parties are permitted to file a petition for visitation or custody.

If you are seeking visitation or custody of a child as a third party and do not fall into one of the categories listed above, the court may decide to allow your petition if it is found to be in the best interest of the child.

Additionally, even if you do fall into one of the statutory categories above, there are some circumstances in which the court will nonetheless deny your right to petition. The court will deny your right to petition regardless of your status as a “Person with a Legitimate Interest” if:

·        You have had your own parental rights terminated;

·        You are seeking access to the child to provide someone with their rights terminated contact with the child; OR

·        You have been convicted of rape, carnal knowledge, or molestation of your own child.

Petitioning for Visitation or Custody as a “Person with a Legitimate Interest”

          After you have established yourself as a person with a legitimate interest through (1) being listed in the statute or (2) establishing that your right to petition is in the child’s best interest, the court will determine whether to grant or deny your request for visitation and custody. The court will make this decision based upon the following factors:

(1) The “Best Interest of the Child Standard”

The primary concern of the court is adhering to what will promote the child’s best interest; not the interest of the “Person with a Legitimate Interest.” To evaluate if the custody or visitation arrangement would be in the child’s best interest, the court will consider a variety of different factors such as:

o   The child’s age, mental and physical condition;

o   The biological parent’s age, mental and physical condition;

o   The relationship between the child and their biological parents;

o   The Needs of the child—including considering the relationships formed with extended family and peers;

o   The petitioner’s relationship with the child;

o   Abuse and family abuse that happened no earlier than 10 years prior to the petition;

o   The preference of the child if the court deems it appropriate; and

o   Such other factors that the court deems necessary

In other words, the court will look at the totality of the circumstances in deciding what will promote the child’s best interest. Cases involving such determinations are decided on a case-by-case basis with varying weight given to any one factor depending upon the circumstances.

(2)                        Presumption that fit parents have the right to direct the upbringing of their children.  

             Although the court will be primarily concerned with promoting the “Best Interest of the Child” as laid out above, Virginia maintains the strong presumption that fit parents have the right to decide issues pertaining to custody and visitation of their children. This right is derived from the idea that fit parents will act in the best interest of their own child without court intervention; therefore, matters pertaining to visitation and child custody are presumed to belong to the parents if the court deems them to be “fit.”

                However, provided that the court finds the parents to be “fit”, there are two ways to overcome this presumption:

1.      If both fit parents are objecting to a “person with a legitimate interest’s” petition for custody or visitation, then the court can override the fit parent’s decision only upon a showing of:

•      Actual Harm to the child if visitation or custody were denied.

AND

•      Clear and Convincing Evidence demonstrates that visitation or custody would be in the child’s best interest.

2.     If only one fit parent objects to a “person with a legitimate interest’s” petition for custody or visitation, then the court can override this parent’s decision upon a showing that:

•      Visitation or custody would be in the Child’s Best Interest

Probability of Success…?

          Your success in petitioning for visitation or custody as a third party will largely depend upon if the parents are deemed “fit” and whether one or both parents are objecting to your petition. Only fit parents are afforded the presumption of the right to decide what is in their child’s best interest. If only one fit parent is objecting to your petition, you must demonstrate to the court that it is in the child’s best interest to override the fit parents’ right to decide what is in their own child’s best interest. Whether you are successful in this endeavor will depend entirely on the facts of your case. To help establish a child custody or visitation award is in the child’s best interest, it is important you gather evidence demonstrating:

o   Why you are requesting visitation or child custody;

o   Your positive and strong relationship with the child;

o   Any additional relationships of the child that may be severed if visitation or custody is denied; and

o   Any other evidence demonstrating why the child is best served through a visitation or custody award.

The court will consider the evidence in light of the “best interest of the child” standards set forth above along with all specific circumstances of your case.

However, if both fit parents are objecting to your petition, you must overcome not only a demonstration to the court that granting your petition is in the child’s best interest, but also that “actual harm” to the child would occur if your petition is denied. The “actual harm” standard is a high bar to overcome—as the petitioner you must demonstrate to the court that the child would suffer measurable physical or emotional harm. To overcome the “actual harm” standard, you will likely need to obtain expert testimony from a mental health expert who will explain to the court the trauma the child will experience if visitation is denied.