Celebrating Grandparents’ Day: The Pillars of Family Support
Each year, National Grandparents’ Day is celebrated on the first Sunday after Labor Day, this year falling on September 7. And this is the perfect time to explore the roles of grandparents in family law cases.
For many families, grandparents aren’t just extended family members; they’ve been the trusted caregivers and physical and emotional anchors when parents needed additional support. Yet when a marriage ends, grandparents can find themselves abruptly shut out of their beloved grandchildren’s lives. When this happens, do grandparents have any legal rights?
At Melone Hatley, P.C., we understand the emotional toll it can take when grandparents find themselves in the middle of the emotional firestorm of their children’s divorce. We work with families across Virginia to find solutions that best serve the interests of the children – and many times, this also involves the grandparents. If you are a grandparent who wants to understand your visitation or custody rights, we are here to provide answers and compassionate, knowledgeable guidance.
Understanding Grandparents’ Legal Standing in Virginia
Under Virginia law, grandparents are considered “persons with a legitimate interest” in a child’s life. This legal designation allows these individuals to petition the court for visitation or custody, even if they aren’t a child’s biological parent. However, the law is clear that the parents’ rights come first. When making these determinations, the court must give deference to the parents’ decisions when it comes to who may be involved in their children’s lives.
This means that while grandparents can request access to the child, they are not automatically entitled to it. Instead, they must show that allowing visitation is in the best interests of the child and, in some cases, that denying visitation would cause actual harm. Consequently, grandparents seeking custody or visitation will require a carefully considered legal strategy and strong evidence unless the parents agree.
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When Might the Court Grant Grandparents Visitation in Virginia?
The legal threshold for granting a grandparent visitation depends heavily on whether one or both parents object.
If only one parent objects, the grandparent may still succeed in securing visitation by demonstrating that maintaining their relationship with the child is beneficial to the child’s emotional and developmental well-being. In this case, the court will consider factors such as the history of their relationship, the grandparents’ involvement in the child’s life, and any role they’ve played in caretaking.
However, if both parents oppose the visitation, the grandparent’s burden of proof becomes significantly greater. In these cases, Virginia courts require clear and convincing evidence that denying visitation would result in actual harm to the child. This could include psychological harm, emotional distress, or the severing of a previously essential support relationship. The court isn’t looking for proof that visitation would simply be a good idea. It must be persuaded that it is necessary to prevent harm to the child.
Seeking Custody as a Grandparent in Virginia
While many grandparents pursue visitation, some find themselves in the position of needing to step in as full-time caregivers.
In Virginia, grandparents can petition the court for legal custody of a grandchild, but doing so requires a high standard of proof. Because the law strongly favors the rights of the parents, a grandparent seeking custody must demonstrate that parental custody would be harmful to the child and that awarding custody to the grandparent is in the child’s best interests.
Custody cases of this nature often arise in situations where the child’s parents are unable, unwilling, or unfit to provide proper care. Some common circumstances where a grandparent might seek custody include:
- Parental substance abuse or addiction
- Ongoing domestic violence in the home
- Severe mental illness or emotional instability
- Neglect or abandonment
- Incarceration of one or both parents
- Death of one or both parents
To support a custody petition, grandparents must present clear and convincing evidence. In these cases, the court will want to see:
- Proof that the child’s current environment is unsafe or unstable, such as medical records, police reports, child protective services involvement, or school disciplinary reports
- Documentation of the parent’s inability to care for the child, including evidence of drug use, criminal behavior, untreated mental illness, or failure to provide basic necessities like food, shelter, education, or medical care
- The existing relationship between the grandparent and the child, including proof that the grandparent has already taken on a caregiver role or provided consistent care, housing, or financial support
- The stability and suitability of the grandparent’s home environment, such as financial resources, living arrangements, health, and ability to meet the child’s needs
- Testimony from teachers, doctors, therapists, or social workers attesting to the child’s needs and the benefits of living with the grandparent
- The willingness of the grandparent to foster a positive relationship between the child and their parents, if possible and appropriate
Ultimately, the court’s decision will hinge on what custody arrangement will best serve the child’s long-term health, safety, and development. In these cases, the court isn’t interested in which adult is more loving or financially secure. Rather, it aims to ensure that the child’s basic needs are being met, and that the child is growing up in a stable, nurturing environment.
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What Happens if the Child is Adopted?
Adoption presents a more complicated challenge for grandparents seeking to maintain a relationship with a grandchild.
In most cases, adoption terminates the legal rights of the birth family or parent. This means that if a child is adopted by a stepparent or another family, grandparents typically lose their legal standing to petition for visitation, unless the adoption is by another close relative that agrees to maintain their relationship.
Because this can be especially painful for a grandparent, they should understand their rights before an adoption is finalized. Once the court grants an adoption, it is usually too late to request visitation, unless specific legal exceptions apply.
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What Steps Can Grandparents Take?
If you are a grandparent concerned about losing contact with your grandchild, you do have legal options, but your timing and approach will be important. An experienced Virginia family law attorney can help assess the strength of your case and guide you through filing the necessary court petitions.
It will also be helpful to document the history and depth of your relationship with your grandchild. This could include a record of visits, photos, shared activities, and any caretaking responsibilities you have handled. Courts will look for evidence that your presence in your grandchild’s life is meaningful and stable. In some cases, mediation may be required or recommended as a first step before litigation. This can be an effective way to reach an agreement while avoiding a prolonged court case.
Most importantly, the best approach to the situation should respect the child’s parents and their rights. Courts are more likely to rule in a grandparent’s favor if they demonstrate their involvement is not meant to undermine the parent’s authority but rather support the child’s well-being.
Honoring the Role of Grandparents in Children’s Lives
Grandparents can play a powerful role in the lives of their grandchildren. But when family dynamics become strained, maintaining that connection may require legal assistance. Virginia law does offer a legal path for grandparents seeking visitation or custody, but the process can be complicated and highly dependent on the family’s circumstances.
At Melone Hatley, P.C., our experienced Virginia family law attorneys believe that these family matters deserve thoughtful, compassionate representation. If you are facing obstacles in your relationship with your grandchildren, we can help you navigate the legal process to protect your relationship and your grandchild’s best interests. Call us today at 800-479-8124 to schedule a free consultation with one of our Client Services Coordinators.
Schedule a call with one of our client services coordinators today.
