Case Study

     In Moore v. Joe, a child’s former foster family sued to regain custody over them after a juvenile court placed the child back with her biological mother. The foster parents argued that the mother’s history of mental health and drug issues should be enough on their own to render her unfit to maintain custody, but a mere history of these issues is not enough to prove that custody should have been transferred. The court ruled that the foster family was unable to show that the child was suffering “current actual harm” under the custody of her. biological mother, so the child’s biological mother retained custody.


     In Virginia, when a third party sues for custody rights of a child who is under their biological parents’ care, the court prefers to preserve the rights of the parents if possible. The court assumes that it is in the child’s best interest to stay under their biological parents’ care absent proof to the contrary. Therefore, if a third party is challenging a biological parent’s custody over their child, the third party has the burden of proof to show the court that the biological parent’s care is not in the best interest of the child. To prove this, the third party has to prove to the court that the child is suffering “current actual harm” under their biological parents’ care.

     Instances of current actual harm can be proven through evidence of the parent’s inability to fulfill their obligations to the child as a parent, abandonment, or other “special facts and circumstances” that constitute “an extraordinary reason for taking a child from its parent.” If the third party cannot show current actual harm by clear and convincing evidence to the court, then the court will continue to assume the biological parent’s care is in the best interests of the child.

     Additionally, the rule for third party visitation is decided the same way. The third party suing for visitation rights has to show by clear and convincing evidence that the child is suffering current actual harm in the absence of the third party’s visits.


     In Virginia, a party suing for custody or visitation of a child must show, by clear and convincing evidence, that the child’s current custody or visitation structure is causing, or will cause, current actual harm to the child. Absent this evidence, the courts will assume that it is in the best interests of a child to remain under their biological parents’ care.

     If you would like to discuss your options in your Virginia custody or visitation action, please call one of our offices at 804-325-1245 (Richmond) or 757-941-4298 (Williamsburg) to discuss how our attorneys can be of assistance.


Special Thanks to Brayden Meadows for his assistance with this article.

H. Van Smith
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Trusted Virginia Attorney Serving Richmond to Williamsburg