Since people are living longer, an increased number of retired couples step in to manage custody and visitation of the chaotic lives of their children to provide a stable environment for their grandchildren. If a relationship with their child becomes strained, and bonds with grandchildren have grown, grandparents may seek to establish custody and visitation rights. 


Grandparents are Considered to Have a “Legitimate Interest” in Grandchildren

The court makes this determination based on the same set of factors used in determining custody or visitation amongst parents, considering grandparents in the equation if desired or necessary. Virginia Code § 16.1-278.15 (B) states that “the court may award custody upon petition to any party with a legitimate interest therein, including, but not limited to, grandparents…” The term “legitimate interest” is broadly construed, considering the best interests of the child. 

Virginia Code § 20-124.2 allows for “any person with a legitimate interest” to petition the court for custody of the child. This includes grandparents, as defined in Virginia Code § 20-124.1. 


Standard of Proof Requires Clear and Convincing Evidence

On the surface, this seems like a simple standard to meet. However, the standard for grandparents requires clear and convincing evidence that denial of custody and visitation would be detrimental to the child. The grandparents must first 1) rebut the legal presumption in favor of the natural parents, and 2) prove that living with the grandparents would be in the child’s best interest.

This is seen in Williams v. Williams, a 1998 case in which the grandparents sought visitation of their grandchild. The parents denied the grandparent’s visitation, thus leading to the grandparents petitioning the court for court ordered visitation. The grandparent’s petition for visitation was dismissed because they could not show “clear and convincing evidence” that denial of visitation to the grandparents would be detrimental to the child. This is a high standard to reach, as it is difficult to prove that the lack of a grandparent’s relationship with the child would be detrimental to the child’s overall wellbeing, assuming the parents are denying the grandparent’s visitation rights. This case was appealed to the Virginia Supreme Court, where it remains the law today, 20 years later.


Extenuating Facts and Circumstances That Show Harm to the Child Necessary

Unless a client has extenuating facts and circumstances to show harm to the child, the standard set forth in Williams v. Williams is hard to prove. The court looks at two factors in assessing extenuating facts and circumstances:

Child consistently living with grandparents for weeks/months at a time, for years, and harmful factors surrounding the parent’s well-being (i.e. drug/alcohol addiction). 


Best Interests of the Child 

In a 2004 Virginia Court of Appeals case, Yopp v. Hodges, the court applied a standard of whether grandparent visitation would be in the child’s best interests as opposed to whether denial of visitation would be harmful or detrimental to the child. Here, the child routinely stayed with the grandparents for four or five years, the grandparents ensured that the child attended school, and the grandparents offered a source of stability that was lacking in the mother’s household. The court held that visitation was appropriate in this situation.


Most Courts Still Use the Standard Set Forth in Williams

Most courts still use the standard set forth in Williams, requiring clear and convincing evidence that a prohibition on visitation would be detrimental to the child.

In a current case, the grandparents petitioned the court for custody and visitation of the grandchildren. The child’s mother could not provide a stable environment, and the father has been absent since birth. However, the court did not want to enter the order because the father was absent and not a party to the contract awarding custody to the grandparents. However, the father is not listed on the birth certificate. This case is pending with my firm in late March 2018.  

Overall, it is best to advise grandparents of the challenges that come with seeking custody and visitation for their grandchildren.

Special thanks to co-author and fellow researcher, Hayden-Anne Breedlove for her contribution with this article. Hayden-Anne Breedlove anticipates graduating from the University of Richmond School of Law in May of 2019.

H. Van Smith
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