In the state of Virginia, there is no statute dedicated exclusively to grandparents' visitation rights. Instead Virginia addresses custody and visitation in the same set of statutes. The reader must sift through a great deal of irrelevant material to find the parts that are applicable to grandparents.
The statutes refer to parents and to "persons of legitimate interest." The second group includes grandparents, stepparents, former stepparents, blood relatives, family members and other unspecified individuals.
Grandparents are, however, the most common group taking advantage of the law to win visitation. Two other barriers may prevent grandparents from suing for visitation. First, when an individual's parental rights are terminated, that person's parents also lose their grandparents' rights. Second, adoption terminates grandparent rights unless the adopting party is a stepparent. This is the case in most states of the United States.
What Happens in Court
The state of Virginia allows the court to draw upon a number of resources when making a decision about grandparent visitation. Tools available to the court include mediation, independent mental health or psychological evaluation and on-camera interviews with the child, although some of these are more likely to be used in cases involving parental custody and visitation than they are in cases involving grandparents. The court can also appoint a to represent the child's interests.
The court is instructed to "give due regard to the primacy of the parent-child relationship," which is one factor causing Virginia to be classified as a restrictive state when it comes to grandparents' rights. "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.
Best Interests Versus the Harm Standard
All states require that courts consider the best interest of the child in deciding visitation cases.
Some states also what is knows as the harm standard. This means that the grandparents must prove that grandchildren would suffer actual harm if visitation is denied.
The harm standard is a notoriously difficult standard to meet, but it is not required by Virginia statues. However, case law has sometimes required a showing of harm, as shown in the cases below.
- In Williams v. Williams (1998), a trial court awarded visitation to the paternal grandparents although both parents opposed it. This decision was overturned on appeal. That court found that when parents are united against the grandparents, there must be a showing of actual harm to the child if visitation is denied.
- In Dotson v. Hylton (1999), a couple divorced, the father was incarcerated and the mother was granted sole custody of their daughter. The paternal grandparents sued for visitation and were supported by their son, the father of the child. Because the grandparents had the support of one of the parents, the court ruled that they did not have to meet the harm standard but could instead meet the lower standard of best interest of the child.
In part because of cases such as Williams v. Williams, Virginia found itself in good shape following the U. S. Supreme Court's decision in Troxel v. Granville (2000). In this case, the Supreme Court found that a Washington state statute did not give sufficient weight to the wishes of the parents. Following that case, most states had to revise the way that they treated grandparent visitation cases.
Virginia courts is considered to meet the standards outlined in Troxel because they give weight to parental wishes. When both parents are against visitation, grandparents are unlikely to win. When one parent is against visitation and one parent is in favor, the best interest standard is commonly applied.
Other Relevant Cases
Some recent cases represent these principles in action. The 2004 case of Yopp v. Hodges demonstrates some of these issues, although it is an atypical case. It is unusual because the grandparents sued their own daughter to gain access and were joined by the father, their ex son-in-law. Because one of the parents was in favor of their contact with the child, the grandparents did not have to meet the harm standard but instead were able to meet the easier standard of best interests of the child. The grandparents had a strong case because they had virtually raised their grandson for the first five or six years of his life.
In Richter v. Manning (2013), paternal grandparents were denied visitation with a grandson after their son, the child's father, died. The court ruled that the grandparents did not prove that the child would suffer harm from a denial of visitation, even though the child had lived in the grandparents' home for a period of time. The grandparents represented the child's link to his dead father, but this fact did not persuade the court to find in their favor.
- See Also: Six Steps for Estranged Grandparents