Third Party Custody and Visitation in VA

What is Third Party Custody and Visitation?

Third party custody and visitation refers to when a court grants custody or visitation rights to someone other than the child’s biological or adoptive parents. Extended family members, for example grandparents, commonly petition for third party custody or visitation. These cases usually end up in court because one or both parents object to allowing the third party to have custody or visitation time. Requests often come when one parent dies and the surviving parent denies visitation to the deceased parent’s extended family.

Who Qualifies? 

Virginia courts can grant custody or visitation to a non-parent if they prove they are “a person with a legitimate interest” in the child’s life. This term is defined by Virginia Code § 20-124.1 as “including but not limited to grandparents, step-grandparents, stepparents, former stepparents, blood relatives and family members” – so long as they have properly brought their claim before the court. The courts interpret this definition broadly in the child’s best interests, so individuals not explicitly listed may still qualify if they have a similar relationship.

Proving Legitimate Interest Is Just the First Step

Showing that you qualify as a person with a legitimate interest is just the first step. You are not automatically entitled to third party custody or visitation. Once you qualify as a person with a legitimate interest, you must prove to the court that the child would suffer actual harm if custody or visitation is not granted.
For Third Party Custody, the non-parent must show actual harm to the child from remaining in the parent’s custody due to:

  1. Parental unfitness
  2. A prior order granting them custody/visitation
  3. The parent’s voluntary relinquishment of the child
  4. Abandonment by the parent
  5. Extraordinary circumstances necessitating third party custody

For third party visitation, the non-parent must prove the child’s health or welfare would be actually harmed without court-ordered visitation. If proven, they must further show visitation is in the child’s best interests.

The High “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, third parties 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 third party 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 Third Party Custody or Visitation?

Like most custody or visitation cases in Virginia, a third party custody or 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 third party is required to follow the rules and procedures of the court for serving the right parties (link for Service of Process in Virginia article), 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 third party custody or visitation case.

Navigating third party custody and visitation 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. Learn more by contacting or calling us at 703-440-7820 today.

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