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Virginia Grandparents' Rights

Custody and Visitation Addressed Together


His little granddaughter makes him so happy
Troels Graugaard/E+/Getty Images

In the state of Virginia, determining grandparents' visitation rights is complicated by the fact that there is no statute dedicated to those rights. Instead Virginia addresses custody and visitation in the same set of statutes. The statutes refer to parents and to "persons of legitimate interest," including but not limited to grandparents, stepparents, former stepparents, blood relatives and family members. A grandparent who is the parent of a person whose parental rights have been terminated is not considered a person of legitimate interest. Adoption terminates grandparents rights unless the adopting party is a stepparent.

Tools available to the court include mediation, independent mental health or psychological evaluation and on-camera interviews with the child, although such tools are probably more likely to be used in cases involving parental custody and visitation than they are in cases involving grandparents.

The court is also instructed to "give due regard to the primacy of the parent-child relationship." "Clear and convincing evidence that the best interest of the child would be served" is required for custody or visitation to be awarded to "any other person with a legitimate interest." The factors to be considered in determining best interest are listed in the statutes, but some do not apply to grandparent visitation. The full list is as follows:

  • The age and physical and mental condition of the child, with consideration given to developmental needs
  • The age and physical and mental condition of each parent
  • The relationship between each parent and each child, with consideration given to parental involvement and capability of meeting 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 any unreasonable denial of access to the child
  • The willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and to cooperate in and resolve disputes about the child
  • The reasonable preference of the child, if the court deems the child able to express such a preference
  • Any history of family abuse
  • Any other factors deemed necessary and proper by the court.

Besides the statutory obstacles to winning visitation, case law offers other obstacles. Following the Supreme Court's decision in Troxel v. Granville, a number of Virginia cases have had the effect of making it more difficult for grandparents and other third parties to win visitation. The chances are better when the parents are divided on the subject of visitation. If, for example, a custodial parent refuses to allow access to the parents of the non-custodial parent, those grandparents may win their case. But when parents are united against the grandparents, there must generally be a showing of actual harm to the child if visitation is denied, and that is a difficult threshold to meet. The 2004 case of Yopp v. Hodges demonstrates some of these issues.

See Code of Virginia Title 20, 124.1 and 124.2. Learn more about post-Troxel court cases.

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