Third Party Custody and the Parental Presumption
In Virginia, custody of a child may be awarded to any non-parent with a legitimate interest. The statute provides a presumption for the “primacy of the parent-child relationship.” Va Code 20-124.2(B). Anyone who wishes to overcome this presumption must demonstrate by clear and convincing evidence that the best interest of the child would be better served by third party custody. The statute goes on to describe a person with a legitimate interest as including but not limited to grandparents, step-parents, former step-parents, blood relatives, or other family members. In Bailes v. Sours, the Virginia Supreme Court established the parental presumption standard. In that case, the father was awarded custody following the parents divorce. The father remarried and the child resided with the father and step-mother until the father passed away. The child continued to reside with the step-mother and had infrequent visits from his mother. When the mother petitioned for custody, she sought to use the parental presumption. The court held that the presumption was overcome by clear and convincing evidence that the best interests of the child demanded he remain in the step-mother’s custody. The Virginia Supreme Court stated that the parental presumption may be overcome when certain factors are established by clear and convincing evidence. Those factors are 1) parental unfitness, 2) previous order of divestiture, 3) voluntary relinquishment, 4) abandonment, and 5) special facts and circumstances constituting an extraordinary reason for taking a child from a parent. 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.