Childrearing by those other than parents is oftentimes in an effort to stabilize life for a child. Due to this fact, the non-parent care takers, typically grandparents, frequently seek formal custody. For a third party to take custody of the child, he or she must overcome several hurdles in favor of the parents.


    Virginia limits standing to seek custody or visitation to persons with a “legitimate interest” in the child. Those with an automatic “legitimate interest” are grandparents, stepparents, former stepparents, blood relatives, or other family members. However, those outside of the traditional categories can be determined to be within the functional equivalent of one of the categories, such as non-biological, same-sex parents. This is done by construing the term legitimate interest broadly and then determining on a case-by-case basis if that person being granted a legitimate interest would be in the best interest of the child.

Rebutting the Parental Right

    The next hurdle is rebutting the fundamental right of a parent to raise his or her child. To do this the nonparent must establish by clear and Rebutting parental custody over childconvincing evidence one of the five factors recognized to rebut the parental right. These factors are: (1) parental unfitness, (2) a previous order of divestiture, (3) voluntary relinquishment, (4) abandonment, and (5) special facts and circumstances constituting an extraordinary reason for taking a child from its parent(s). Determining whether any of these factors are met is a fact-specific inquiry.

Best Interest

    The last thing a non-parent must show is that their custody over the child would be in the child’s best interest.

Determining Your Ability for Custody

    Taking custody of a child as a nonparent is very fact-specific and requires strong advocacy. The attorneys at Smith Strong can help you through the process and will do their best to obtain a result in your favor.  Please call (804) 325-1245 or (757) 941-4298 to schedule your first meeting.

Editorial Assistance By: Michael Gee - Law Clerk

H. Van Smith
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Trusted Virginia Attorney Serving Richmond to Williamsburg