Parental Right to Custody vs. Grandparent’s Rights in Virginia

    The case of Brown v Hawkins in the Norfolk Circuit Court provides an example of the strength of parental rights in Virginia and the difficulty grandparents can have securing court-ordered custody.  


The Facts


    A grandmother sought physical custody of a child, but the child’s father objected and wanted physical custody for himself. The grandmother’s petition for custody was supported by the child’s mother and a guardian ad litem. The child had lived with her mother and grandmother until 2015 when the mother moved and the child stayed with her grandmother. The father had been in jail from 2010 to 2013, but had seen the child periodically throughout her life. The grandmother conceded that the father was a fit parent, but felt it was in the best interest of the child to live with her.


The Test for Securing Third-Party Custody


    A non-parent seeking custody of a child must show by clear and convincing evidence, that there is an extraordinary reason for taking the child from its parent. This standard was handed down by the Supreme Court of Virginia in 1986. A party making a claim that there is an extraordinary reason for taking the child from its parent must cite clear and convincing evidence of special facts or circumstances that support such a reason. In 2009 the Supreme Court of Virginia decided that if the party seeking custody is able to rebut the parental presumption, a court will look at the establishing grandparent custody of a childtotality of the circumstances and determine a custody situation that would be in the best interest of the child.


    The “extraordinary reason” factor had not been determined previously, but the judge in this case said it should be analyzed in a manner similar to the “actual harm” test used in non-parent child visitation and parental rights cases. The actual harm test requires the nonparent to prove that actual harm to the child’s health or welfare will result without the requested visitation. In this case, the grandmother could not prove the father could not meet the child’s emotional, physical, or intellectual needs. Even if it were in the best interest for the grandmother to have physical custody of the child, that alone would be insufficient to overcome the father’s fundamental right to raise his child. Physical and legal custody were given to the father, while the grandmother and mother received only legal custody.


Fundamental Right


    The liberty interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interest recognized by the U.S. Supreme court. In addition, there is a presumption that fit parents act in the best interest of their children. Therefore, this liberty interest is hard to overcome, but can be with skilled custody attorneys.


Pick the Right Attorney


    The knowledgeable and experienced attorneys at Smith Strong provide skilled representation for custody matters, including grandparent’s rights cases. Request a free copy of Van’s book Divorce and Custody in Virginia and see for yourself why our attorneys have won numerous awards in the legal community and generated dozens of five star reviews online. Then set up an appointment with one of the attorneys at our firm by calling (804) 325-1245 or (757) 941-4298.


Editorial Assistance By: Michael Gee - Law Clerk

H. Van Smith
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