We are often asked about the visitation rights of grandparents. In Virginia, the courts use a number of factors to determine what is in the child’s best interest, which is the standard the court must use to determine visitation rights. However, if (1) you are a grandparent seeking visitation and both parents object, (2) only one parent is living or, as noted below, (3) one parent objects and the other parent does not give an opinion; you must first prove that the child will suffer “actual harm” before the courts will even apply the factors to determine if the visitation is in the child’s best interest.
A local Virginia court recently denied a grandmother visitation rights where her daughter, the child’s mother, did not want visitation to occur. The visitation was denied even though the grandmother had a strong relationship with the child for the first three years of his life and the guardian ad litem (an attorney looking out for the child’s best interests) recommended the grandmother have visitation. The court ruled that the grandmother’s absence from the child’s life, without more evidence, would not meet the necessary “actual harm” standard to grant visitation.
Grandmother could not prove "actual harm."
While there are a number of previously-decided court decisions that influenced the judge to rule against the grandmother and in favor of the mother, the main reason was that the father’s lack of voiced opposition (despite the father not being in the child’s or mother’s life) did not, as the Court stated, “equate to agreement or even acquiescence to Grandmother’s requested visitation.” Thus, regardless of the reasons why the child’s father was out of the picture because he didn’t explicitly support grandmother’s request, the “actual harm” standard had to apply. While the Court felt the evidence showed that the grandmother’s absence would not be in the child’s best interest, without any testimony from a psychologist or psychiatrist (which there was none presented in this case), the “actual harm” standard was not met and the Court had to dismiss the grandmother’s petition under Virginia law.
Custody and visitation disputes can become very stressful and often times the courts’ decisions might seem unfair, but in every case, the main questions ultimately revolve around the best interest of the child. However, if you are a “person with a legitimate interest,” like a grandparent, you may have a higher burden than just proving this standard. For this reason, it is very important to hire an attorney that is well versed in Virginia law and has the necessary experience with these types of cases to ensure the right evidence is presented, and arguments made, to maximize your chances of prevailing.