Virginia law doesn’t specifically address the rights of grandparents in divorce cases. Nevertheless, grandparents in Virginia can be granted custody or visitation in some instances. For example, a grandparent might be awarded custody rights because of a parent’s death, illness, or incarceration. In short, grandparents cannot expect custody rights per se but can petition the court for custody or visitation rights if parents cannot fulfill their duties or in other circumstances. Virginia law allows for a person with a “legitimate interest” in the child’s life to petition for custody or visitation. A “person with a legitimate interest” is broadly construed and includes, but is not limited to, grandparents. By law, the court is required to give due regard to the primacy of the parent-child relationship but may upon a showing by clear and convincing evidence that the best interest of the child would be served, award custody to any other person with a legitimate interest. Clear and convincing evidence is a higher burden of proof than the “preponderance of evidence” required in a standard civil case but it is a lower burden of proof than a criminal law case which requires proof “beyond a reasonable doubt.”
There are different burdens of proof with regard to a non-parent seeking custody of a minor child versus a non-parent seeking visitation.
“Grandparent visitation” over the objection of a biological parent requires (1) proof of “actual harm” to the child if visitation is not permitted; and (2) proof that visitation is in the “best interest of the child.” It can be very difficult to prove “actual harm” because actual harm must be proven by more than simply showing that it would be better, desirable, or beneficial for a child to have visitation with a grandparent or that the child would “miss” the grandparents.
Prior to July 2021, the death or incapacitation of a biological parent did not create an exception to the burden to prove actual harm for visitation sought by the grandparents related to the child of the deceased or incapacitated parent. Effective July 1, 2021, Virginia law was amended to make it easier for grandparents to establish visitation with their grandchild if the natural or adoptive parent is deceased or incapacitated. Specifically, Virginia Code Section 20-124.2(B)(2) now provides that in any case in which a grandparent has petitioned the court for visitation with a minor grandchild, and a natural or adoptive parent of the minor grandchild is deceased or incapacitated, the grandparent who is related to such deceased or incapacitated parent shall be permitted to introduce evidence of such parent’s consent to visitation with the grandparent, in accordance with the rules of evidence. If the parent’s consent is proven by a preponderance of the evidence, the court may then determine if grandparent visitation is in the best interest of the minor grandchild.
In light of the recently amended law, it may be beneficial for parents who want to ensure that their child has contact with a grandparent in the event of a parent’s untimely death or incapacitation to include a provision in their custody agreement or other estate planning documents expressly consenting to visitation between the minor child and grandparent(s) and/or expressly stating that the actual harm standard would be met if visitation with a grandparent was denied.
Troxell Leigh P.C.’s family law attorneys have handled complex cases involving grandparent custody and visitation and are happy to help clients in this unique area of the law.