How and When Custody Is Awarded to a Grandparent

Patricia TichenorLegal

In most child custody cases, the decision of who cares for a child is usually between that child’s two natural parents. However, there are certain cases in which a grandparent may be awarded temporary or permanent custody of a child while their parents are still living.

If you have a special custody case that potentially involves the child’s grandparents, read on to learn the basics of grandparent custody in Virginia.

Grandparent custody vs. guardianship

Custody and guardianship are similar but remain two distinct legal relationships. Custody refers to a biological or adoptive parent’s care for their child, while guardianship describes a court-appointed legal relationship between a child and a non-biological individual. However, in the Commonwealth of Virginia, the court can grant biological grandparents custody of a child if they deem the parents unfit – which must be proven by clear and convincing evidence (the highest civil standard of proof, often seen as being equivalent to the beyond a reasonable doubt standard in criminal law).  If the parents have both died, the Court may grant guardianship to the grandparents.

What are grandparent custody rights in Virginia?

Virginia does not have set laws regarding grandparent custody rights; the state relies on interpretations of existing laws and previous court decisions to grant custody rights on a case-by-case basis.

Virginia typically uses three laws to determine a child’s custody arrangement:

  • Virginia Code § 20-124.1 defines the legal term “person with a legitimate interest.”
  • Virginia § Code 20-124.2 allows an individual who meets the legal definition of a “person with a legitimate interest” to gain custody if it is in the best interest of the child.
  • Virginia Code 20-124.3 sets the guidelines for determining the best interest of a child using 10 different factors.

When can grandparents gain custody of a child in Virginia?

Here are five parental presumptions that could award a grandparent custody.

  1. Parental unfitness: If the court deems parents unfit to retain custody of a child.
  2. Previous order of divestiture:  If the court previously ordered to take away the child from their parent, often due to a history of physical or emotional abuse, violence, or drug or alcohol abuse.
  3. Voluntary relinquishment of custody: If the parents willingly relinquish custody of the child.
  4. Abandonment: If the parents deserted or neglected the child without any regard for their age or well-being.
  5. Special circumstances: If the court outlines special facts or circumstances that indicate a parent retaining custody of a child is not in the child’s best interest.

Who determines what is best for a minor child?

Virginia courts must, under Virginia Code 20-124.3, determine the best interests of a child regarding custody, considering the following 10 factors:

  1. A child’s age, physical, and mental condition.
  2. A parent’s age, physical, and mental condition.
  3. The relationship that exists between the child and the parent.
  4. The child’s needs regarding relationships outside of the parents.
  5. The roles a parent plays in caring for the child.
  6. The ability of a parent to facilitate and maintain the child’s relationship with the other parent.
  7. The parent’s ability to maintain a close and continuing relationship with the child.
  8. The reasonable preference of the child (if they have appropriate intelligence and experience, and are of age, to properly express a preference.)
  9. The history of (or lack thereof) family abuse, sexual abuse, child abuse, or violence that occurred within the last 10 years.
  10. Any other factors a court may consider.

Tips for grandparents who want to gain custody of grandchildren in Virginia

The tips for being awarded custody of a grandchild are generally the same tips given to parents that are trying to win custody of a child:

  1. Focus on the best interest of the child: If you want custody of your grandchild, you must be focused on their overall wellbeing.
  2. Be civil: A court can rule either way, so you must be civil to remain in the child’s life.
  3. Evaluate what might be working against you: If there is anything about your lifestyle that would give a court pause in awarding you custody, address these issues before they work against you in court during a custody case.
  4. Use social media cautiously: A court may find social media usage as a reason not to award custody to a grandparent. This works both ways, however. Do the child’s parents’ social media accounts paint a bad picture? It is best to gather the evidence before a case begins.
  5. Meet the clear and convincing standard of proof before filing:  The U.S. Supreme Court, in the case of Troxel v. Granville, made it clear that grandparents do not have any constitutionally protected right to visitation with a grandchild.  Grandparents have never had greater rights than a child’s parent to custody either.  A parent’s rights to raise and care for a child are protected under the U.S. Constitution; and, absent very clear issues of incapacity or unfitness, State courts do not readily interfere with the custodial rights of natural parents where a dispute arises between them and a grandparent.  Virginia, therefore, sets a high standard of proof for a grandparent to prevail in court and win custody of a grandchild, and, absent “clear and convincing evidence” that the natural parents are unfit to continue as custodians, a grandparent will not be granted custody.
  6. Hire an experienced attorney: A custody battle is serious; you need someone who can act as a mediator while providing support. An experienced attorney can give insight into how best to prepare for a case.

As demonstrated, winning custody of a grandchild is not a simple matter. Take the guesswork out of the equation by consulting with My Legal Case Coach.

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