Modern Family: Asserting a Grandparent’s Rights in Virginia Child Custody Cases

Modern families have many more members than static families in the past typically did, which means there are more interested parties in the adoption process than there have been in the past.  The 2014 Smyth County case, Hardy v. Poston, deals with the emerging issue of grandparent adoption.

            On April 14, 2008, the circuit court in Berkeley County, West Virginia, terminated the mother’s parental rights and gave the father custody.  Then on October 7, 2008, the grandmother received sole custody of the children and the father received visitation rights based on an agreed order.  His visitation rights were later amended to supervised visitation.  However, approximately a year later his visitation rights were suspended, causing the grandmother to attempt to adopt the children formally. 

            The court granted the grandmother’s petition for adoption because they found sufficient evidence to prove that being adopted by her was in the children’s best interest.  The evidence showed that the father had not had custody of either child for approximately six years and he had not exercised his visitation rights frequently even when he had them.

The court also looked to past conduct to rule that the father should not have custody of the children.  The father had been convicted of murder thirty years ago and had served time in prison.  Additionally, the father had recently been convicted and incarcerated for malicious wounding, causing the court to find that he still had a tendency towards violence.  Furthermore, the court found that the three-year-old daughter acted out sexually when she came to her grandmother’s house in a way that nobody her age should.  Even though the trial court did not find this evidence sufficient to show that the father had abused her directly, it did indicate that the father failed to protect the child from circumstances which caused her to know about such things not fit for anyone her age. 

Therefore, because the court found the father was unfit to have custody of the children, they allowed the grandmother to adopt the children and have them under her custody and control because that was in the children’s best interest. 

Grandparent’s rights is a highly nuanced area of Virginia child custody law.  Attorney Van Smith of Smith Strong, PLC welcomes your call at (804) 325-1245 or (757) 941-4298.