Grandparent Visitation

In most cases, grandparents do not have an inherent right to visitation.  Virginia law considers grandparents to be interested third parties. This means grandparents must usually follow the rules and procedures that apply to all third party visitation cases. Learn more about third party visitation here.

There is a strong presumption that parents will act in their children’s best interests. Typically, Virginia courts will not intervene so long as the parents are fit to care for the child. This means that the courts normally let the parents decide whether or not to allow grandparent visitation. If the parents object to grandparent visitation, the grandparent must prove that the child’s health or welfare would be actually harmed without court-ordered visitation. If proven, the grandparent must further show that visitation is in the child’s best interests.

There are special provisions in Virginia law that apply to grandparent visitation when one of the parents has died or become incapacitated. According to Virginia Code§ 20-124.2(B2), if a parent has died or is unable to care for their child, a grandparent who is related to that parent can present evidence to the court proving the deceased or incapacitated parent consented to allow the grandparent visitation. But, if the surviving parent objects, simply showing that the deceased or incapacitated parent consented may not be enough.

Some Virginia trial courts have ruled that the grandparent must still show actual harm for visitation to be awarded over the objection of the surviving parent. This area of law – and the interpretation of the statue – continues to evolve. If you are a grandparent whose child has passed away or is incapacitated and you are seeking visitation rights, you would be wise to find an experienced family law attorney to assist you present your case to the court.

What is the Actual Harm Standard?

Virginia courts have ruled that before going against a fit parent’s fundamental rights to decide who may spend time with their child, there must be proof that the child would actually be harmed without court intervention. So, grandparents seeking custody or visitation over the objections of the parents face a very high evidentiary burden.

Demonstrating this required “actual harm” is extremely difficult. Courts cannot simply find harm because the grandparent could provide a better situation than the parent. General claims about a positive relationship with the child or arguments about best interests are insufficient to prove actual harm.

How do I begin a case for Grandparent Visitation?

Like most visitation cases in Virginia, a grandparent visitation case can be filed in the Juvenile and Domestic Relations District Court in the county or city where the child lives. Once the case is filed, the grandparent is required to follow the rules and procedures of the court for serving the right parties, setting the case for trial and presenting evidence at trial. An experienced Virginia family law attorney can assist you with all aspects of litigating a grandparents visitation case.

Navigating grandparent custody and visitation rights is an emotional and challenging task. Because of these complexities, it is advisable to seek legal counsel when navigating grandparent visitation rights. The Virginia family law attorneys at Bourdon & Tortolero have the experience, legal insight, and skill to assist you, and we’re standing by to help.

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