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Hofheimer Family Law Firm

Q
Do grandparents have rights to child visitation in Virginia?

A

Yes!  In the state of Virginia, there IS such a thing as “grandparent visitation," but it's VERY difficult to get. Grandparents can petition for grandparent visitation on their own, or as part of a petition filed by the non-custodial parent (meaning, the parent who has LESS time with the children).

This can happen as a result of divorce when, for example, the non-custodial grandparents want to spend more time with the child.  Typically, these grandparents would file for custody and visitation jointly with the non-custodial parent. 

Sometimes, though, this can happen independently of a divorce situation, if both mom and dad are denying grandparents access to their grandchild.  When the court makes a determination about custody, though, it automatically gives preference to the child's parents.  If both parents are united in their desire to keep the children away from a particular set of grandparents, it is unlikely that the court would allow visitation against their wishes.

In order to get grandparent visitation in Virginia, the grandparents would have to prove that the child would suffer actual harm without this visitation.  This is a VERY hard standard to meet, so it is nearly impossible for grandparents to get visitation if the parents don't allow it to happen.

But what does actual harm mean?  Well, essentially, actual harm means that the child (or children) would suffer from lack of contact with the grandparents.  It doesn't mean that it would be better for the child to have grandparents in his life--it means that the child will come to actual, concrete, certain harm without them.

Either way, the standard that a grandparent must meet in order to have the court award visitation—“actual harm”—is the same, and that would be what the grandparents had to prove in order to be granted visitation.  However, if both parents agree that a certain set of grandparents is unfit to have visitation for one reason or the other, the court will take those feelings more seriously than if the custodial parent is spitefully withholding the children from the parents of his or her ex-spouse.

To determine what an appropriate custodial relationship is for a child, the court tries to assess what is in the “best interests of the child.”  Usually, this is based on a complex analysis of the best interests of the child factors, found at Virginia Code §20-124.3.  Sometimes, the court will also appoint a Guardian ad Litem, a licensed attorney, to represent the child and make an ultimate recommendation to the court.

In some Virginia divorce cases, the non-custodial grandparents may want to see the child, but the custodial parent is reluctant to allow it. Parents are considered the primary caretakers of the children and are endowed with certain rights and benefits by the state of Virginia. When a court has to make decisions about child visitation, consideration is given mainly to the child's parents.

If you are being denied access to your grandchildren, it is certainly worth a shot to petition the court for custody or visitation.  Remember that custody and visitation orders are modifiable based on a material change of circumstances, too, so if you are unsuccessful you can petition again later.  Good luck!