A common question that I receive as a child custody attorney is what are the custody rights of parents versus grandparents? The Court applies a different analysis depending on whether a grandparent is seeking custody, or whether they are seeking visitation. In this blog I focus on the analysis a court will use to determine custody rights of a parent versus grandparents.
I. The Parental Presumption
The first step in an analysis as to whether a grandparent should have custody over a parent is whether the grandparent has rebutted the Parental Presumption. The Parental Presumption is the rule of law expounded by the Supreme Court of the United States in the case of Troxel v. Granville, 530 US 57 (2000). In this pivotal case the court found that the right to parent one’s children is a fundamental right. This right only applies to the parents of the child, not the grandparents. As a result of this fundamental right the Court found that a presumption existed in favor of the parents over the grandparents who maybe seeking custody. The Court went to find that a grandparent must prove by clear and convincing evidence that this presumption in favor of a parent has been re-butted before a grandparent can be considered for custody of the child or children concerned.
II. The Parental Presumption in Virginia
In Bailes v. Sours, 231 Va. 96 (1986), the Supreme Court of Virginia established categories by which the Parental Presumption can be overcome. Those five are as follows: (1) parental unfitness, (2) previous divestiture of parental rights, (3) voluntary relinquishment by the parent, (4) abandonment by the parent, or (5) special facts and circumstances, which justify taking a child from its parent. A grandparent must demonstrate one or more of the above five, by clear and convincing evidence, in order for a court in Virginia to consider placing custody with the grandparents over the parents.
III. The Best Interest of the Child
If a grandparent has rebutted the Parental Presumption, the court will then look to the best interest factors under Virginia Code 20-124.3 in determining whether or not to place custody with the grandparents. The Best Interest Factors include but are not limited to such things as the age, physical and mental condition of the child and the parents and grandparents, the relationship between the child and each parent or other party seeking custody, the role each party has played in the development of the child, among other factors. If a court has found the Parental Presumption rebutted by the grandparents, then finds that it is also in the child’s best interest to place custody with the grandparents, the court will do so.
In conclusion, there is a two step process in any case involving the custody rights of parents versus grandparents. The grandparent must first rebut the Parental Presumption by clear and convincing evidence under one of the five areas outlined by the Virginia Supreme Court. If this is done, the court will then look to the Best Interest Factors under Virginia Code Section 20-124.3 in determining with whom custody of the child should be placed. If you are a grandparent seeking custody, or a parent trying to maintain custody, these are important laws to understand and should be applied in every case involving custody rights of parents versus grandparents. Please contact Brandon C. Waltrip, Esq., or one of the attorneys at Collins | Waltrip, PC, if you have questions about custody or visitation.
