What rights do Virginia grandparents have to time with grandchildren?

Virginia statutes and cases define these important rights.

The bond between grandparents and grandchildren can be a strong, meaningful one. This relationship may be interrupted by divorce, dysfunction, family stress, emergency, illness, death or estrangement. Grandparents have some legal recourse in Virginia to access to their grandchildren, depending on the circumstances.

A special relationship

Anyone lucky enough to have had a close relationship with a grandparent knows its intrinsic value. The Boston Globe reviewed a number of studies internationally on the subject, which found that the relationship can have these benefits:

  • Grandparents connect with the ideas of a new generation.
  • Grandchildren enter adulthood equipped with grandparents' "life wisdom."
  • Grandchildren develop a sense of history from their grandparents' stories.
  • Grandchildren may be better adjusted and socialized, including "fewer emotional and behavioral problems" and healthier peer interaction.
  • The relationship helps cushion challenges like divorcing parents or being bullied.
  • Grandparents may better maintain their cognitive skills.
  • Grandchildren have their grandparents for support.

Every family and its dynamics are unique, but for a grandparent with a special grandchild relationship or who cares deeply for a grandchild, interruption in that relationship may create the need to explore legal rights to grandparent visitation or custody with an attorney.

A legitimate interest

Virginia statute allows the court to grant visitation or custody rights (which can be sole or joint legal or physical custody) to a person other than the parents when the third party has a "legitimate interest," which by definition includes a grandparent. The court must still "give due regard to the primacy of the parent-child relationship," but if the best interest of the child in having grandparent visitation is shown by clear and convincing evidence, the court may award visitation or custody.

A parent objects to visitation

If both parents are fit (or the surviving parent if the other has died) and object to a grandparent's request for visitation, there is a higher standard to meet. In such a situation, the Virginia Supreme Court requires that before the judge looks at the best interest of the child, he or she must first determine whether denying the visitation would harm the child's welfare.

If the child would not actually be harmed by not seeing the grandparent, the visitation is denied because of the parental objection. If the child would be harmed if it did not spend time with the grandparent, the court will then decide the request based on the child's best interest.

If only one fit parent objects to grandparent visitation and the other does not, then the court does not have to first look at whether the child would be harmed by denying visitation. Instead, it looks immediately at whether visitation is in the child's best interest.

Loss of legitimate interest

Unfortunately for some, a grandparent's legitimate interest in custody or visitation terminates in certain situations:

  • The parental rights of the grandparent's son or daughter (the grandchild's parent) have been terminated.
  • The child has been adopted, unless the adoption was by a stepparent.

Legal issues related to grandparent visitation or custody (or even of grandparent adoption) can be extremely complex and the factual situation can be very emotional. Any Virginia grandparent in this situation should seek legal advice as early as possible.

The family lawyers at Bowen Ten Cardani in Richmond advise and represent grandparents in legal matters concerning grandchildren throughout the Richmond metropolitan area and across the state of Virginia.