Visitation and grandparent rights

When people decide to divorce or separate, it can also have huge ramifications in the lives of their children and other family members, especially if the divorce is contested. Grandparents who have developed a loving relationship with their grandchildren will understandably want to maintain their regular contact with them.

However, when the parents are fighting about child custody and their own visitation rights, they may use their children as a weapon and deny grandparents visitation rights. If you are being prevented from seeing your grandchildren, it is important to understand your legal rights to visitation. 

Grandparent Visitation Rights in Virginia

In the Commonwealth of Virginia, parents have the primary right to custody of their children and to make decisions about their children’s lives. A grandparent’s rights are secondary to the rights of the parents. This was reaffirmed in Troxel v. Granville, an important U.S. Supreme Court case decided in 2000. In that case, the Supreme Court upheld the constitutionality of a broad grandparent visitation law out of Washington. Although the Washington law was upheld, the Troxel case required a parent’s preferences to be considered before awarding grandparent visitation. Also, under Troxel, grandparent visitation couldn’t interfere with a parent’s basic rights.

In Virginia, any person who has a legitimate interest can petition the court for visitation. Individuals who have this right include:

  • Grandparents
  • Step-grandparents
  • Blood relatives
  • Stepparents
  • Other family members

Grandparent Visitation: What’s in the Best Interests of the Child

When deciding on custody and visitation issues of parents and others, the judge is required to consider the best interests of the child in making this decision. There are a number of factors that must be considered when determining what is in the child’s best interests, including evaluating the age and physical and mental condition of the child, needs of the child, parental involvement in the child’s life, and the child’s relationship with his grandparents. The grandparents’ visitation must be in the child’s best interests and not interfere with the parents’ relationship with the child.

What a grandparent must establish to be granted visitation will depend on whether one or both parents are objecting to his right to see his grandchildren. Here are the rules regarding what must be proven.

Both Parents Object

If both parents do not want the grandparent to have visitation, the grandparent must show that the child’s health or welfare would be harmed if he does not see his grandparent. This is very difficult to prove. In addition, there must also be clear and convincing evidence that maintaining a relationship with his grandparent is in the best interests of the child.

One Parent Objects

When only one parent does not want visitation, a grandparent will have an easier time getting visitation rights. He will not have to prove actual harm if he is denied contact with his grandchild. However, he still must prove that visitation is in the best interests of the child for his petition to be granted.

In addition, cases where one parent objects to the visitation can be easier to resolve than those where both parents are fighting against it. In some cases, the objecting parent and grandparent will be able to settle their differences rather than have a judge make this decision for them.

When a Child Is Adopted

If a child is adopted either because the parents voluntarily decided on this or their parental rights were terminated, a grandparent no longer has any right to visitation of the grandchild. In general, the termination of the parental rights also terminates any grandparent rights to visitation. However, there could be exceptions to this rule if the child is adopted by a stepparent or other close family member.

If you have further questions about your rights to visitation as a grandparent or need assistance filing a petition for visitation, family law attorney Stephen Bloomquest is here to answer your questions and fight for your legal rights in court. To learn about his extensive experience in family law matters and why he is the right attorney for you, call his Midlothian office to schedule a private consultation with him.