In some cases a grandparent may want to petition for full custody of their grandchild where the child’s parent suffers from mental health problems, drug or alcohol addiction, or has been abusive or neglectful of the child in the past. In such cases the court will consider both the continuing relationship between parent and child as well as the best interests of the child.
In Virginia, any person with a “legitimate interest” can petition the court for custody. Persons with a legitimate interest include not only grandparents, but also step-parents, former step-parents, blood relatives, or other family members. Parents are entitled to a presumption of custody over all others, meaning the burden for non-parents to obtain custody over a parent’s objection is higher than in other cases. The court must balance the best interests of the child against the parent’s fundamental and constitutional rights to make decisions for their own child.
The natural parent is entitled to a presumption above all others with a legitimate interest, unless the court can find one of the following factors:
1) parental unfitness,
2) previous order of divestiture,
3) voluntary relinquishment,
5) special facts and circumstances constituting an extraordinary reason for taking a child from a parent.
If a grandparent can establish one of the above factors then they stand on equal footing with the biological parent in petitioning for custody. Then the court will look to the best interests of the child factors in 20-124.3 to make its decision. The factors are:
1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;
2. The age and physical and mental condition of each parent;
3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;
4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;
5. The role that each parent has played and will play in the future, in the upbringing and care of the child;
6. The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;
7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;
8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;
9. Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and
10. Such other factors as the court deems necessary and proper to the determination.
Parental rights have always been recognized and respected by common law and statute. However, the primary focus in any custody dispute is the best interest of the child. If the best interest of the child is better served by third party custody, the court can transfer custody away from a parent.
Melone Hatley is a general practice law firm and serves Virginia Beach and the Northern Virginia area. Our practice areas include Family Law, Divorce and Special Needs Children, Traffic Ticket Defense, DUI/DWI Defense, and Trust and Estate Law. Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service. Through our high standards, we strive to be a trusted resource to our clients.
We know from experience that a successful attorney-client relationship depends on our ability to understand your needs and objectives. For more information about custody, visitation, relocation, and family law, contact our office today at 703.995.9900 in Northern Virginia or 757.296.0580 in Virginia Beach,or visit our website: www.MeloneLawPC.com.
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