Yes. Virginia Code § 20.124.1 states that “a person with a “legitimate interest” shall be broadly construed and includes, but is not limited to, grandparents.” However, in Virginia there is a Parental Presumption.
The Parental Presumption was established in Troxel v. Granville, 530 US 57 (2000). In Troxel, grandparents petitioned a Washington Superior Court for the right to visit their grandchildren. The Supreme Court stated “it is cardinal with the court that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” However, this does not mean that a grandparent can NEVER gain custody of the grandchild.
Clear and Convincing Evidence
A grandparent may be considered for custody of the child if they prove by clear and convincing evidence that this presumption in favor of a parent has been re-butted. Virginia courts have provided situations as to when the presumption can be re-butted. The five situations include: parental unfitness, previous divestiture of parental rights, voluntary relinquishment by the parent, abandonment by the parent, or special facts and circumstances, which justify taking a child from its parent.
If the grandparent can successfully rebut the Parental Presumption, the grandparent then must prove that gaining custody of the child would be in the child’s best interest. In determining best interests of a child for purposes of determining custody or visitation arrangements the court shall consider the following:
- The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;
- The age and physical and mental condition of each parent;
- The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;
- The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;
- The role that each parent has played and will play in the future, in the upbringing and care of the child;
- The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;
- The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;
- The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;
- Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and
- Such other factors as the court deems necessary and proper to the determination.
Though grandparents do have some rights under Virginia law, gaining custody of a grandchild is a complex, and often times, long process. Contact us at Holcomb Law to schedule your “Legal Strategy Meeting,” at which our custody attorneys will answer ALL of your questions and show you your options. You can reach us at 757-656-1000 or firstname.lastname@example.org. We will take good care of you.