When parents choose to divorce or separate, it isn't just the obvious immediate parties -- parents and children -- who are affected. Other members of the family may be affected as well, including grandparents.
Unfortunately, custody arrangements in Virginia, or anywhere else in the country for that matter, don't usually take into consideration the time grandparents get to spend with their grandchildren. In fact, there are even situations in which grandparents might wonder about their rights in these matters, including whether or not they can fight for custody and visitation.
If you're a grandparent who has questions about seeking custody and visitation of your grandchildren, it's important to know how the courts handle these types of custody situations. In order to do that, we need to first look at two sections of the Virginia Code.
Virginia Code § 20-124.2 and § 20-124.1
Under § 20-124.2 of state law, custody or visitation rights may be awarded to "any other person with a legitimate interest" in the wellbeing of the child, which is later defined in § 20-124.1 to include grandparents, among other related family members.
These two sections of the Virginia Code are important for grandparents because it establishes grounds for requesting custody of grandchildren, which isn't always the case in other states.
The long, difficult path to custody
It's very important for grandparents in Virginia to know that just because they have the right in our state to seek custody of their grandchildren, this doesn't always mean a judge will grant this request. As Section 20-124.1 goes on to explain, awarding custody to a person with legitimate interest must only be done if it is in the best interests of the child.
This is due in part to the U.S. Supreme Court case Troxel v. Granville, 530 U.S. 57, 65 (2000), that established the presumption that "the constitutional right of a custodial parent to make certain basic determinations for the child's welfare [is implied]," meaning it is inherent and above someone else's desire to be the custodial caregiver.
It's because of this case, as well as state law, that grandparents in Virginia must present evidence that shows they would be better caregivers to the children than the parents and that living with their grandparents would be in the grandchildren's best interests. As you can imagine, this can be a challenging fight, especially if evidence is not presented correctly or is not persuasive enough to sway the judge in favor of the grandparents.