A local Virginia Court denies grandparents visitation rights.

Grandparents visitation rights

We are often asked about grandparents visitation rights.

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 grandparents 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 grandparent have visitation. The court ruled that the grandparent’s absence from the child’s life, without more evidence, would not meet the necessary “actual harm” standard to grant visitation. 

Grandparent could not prove "actual harm."

While there are a number of previously-decided court decisions that influenced the judge to rule against grandparents visitation rights 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 grandparent’s requested visitation.” Thus, regardless of the reasons why the child’s father was out of the picture because he didn’t explicitly support the grandparent’s visitation rights 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 grandparent’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.

4 Comments
While the law pertaining to grandparent’s rights may be upsetting, hopefully, if the grandparents have a close enough relationship with the grandchild(ren), they should be able to meet the actual harm standard. It is also important to keep in mind that there is a long history of both Federal and State cases (not just Virginia) that stress the importance of parental rights and a parent’s constitutional right to decide what is and is not best for their child(ren). If Virginia changed its law pertaining to non-parent visitation rights and made it just the best interest standard, that law likely would be considered unconstitutional and leave the grandparents in worse shape overall. It is a challenging area of the law; what is best for children is complicated. We always hope that people act in the children’s interests, which unfortunately is not always the case. We often find ourselves representing grandparents fighting for visitation (and sometimes custody) of their grandchildren when the children’s parent(s) aren’t doing the right thing.
by Allison Anders February 15, 2019 at 12:23 PM
This is so very sad and another example of how courts and states across this country have failed our children. I believe that if a fit Grandparent has an already existing strong relationship and bond with their grandchildren They should be allowed to continue with a visitation. In many of these cases when adult children become estranged from their parents they use their own children as leverage to hurt the grandparents and as a result it is the children that are hurt psychologically which is abuse.The best interest of the child should come first no matter what. There are many factors to consider but the courts are robbing these children of their ancestry and history as well as knowing and learning from their grandparents. The courts continue to enable this injustice against grandparents which in some or most of these cases may be the most stable adults in these children’s life. If consent was given by a parent for their children to have a relationship with their grandparents that should be proof enough that the grandparents were allowed to be close and part of their grandchildrens life. There should be burden of proof also place on these parents to stand before the court to proof WHY it would not be in the best interest of the children to not see their grandparents.
by Marie Rossi February 9, 2019 at 05:25 AM
The grandmother in this case was the maternal grandmother. I agree that the circumstances are sad, but the courts have to protect the constitutional rights of the parents. Sometimes the parents have very good reasons for not wanting to allow the grandparents to have visitation with their grandchild. If the courts were to make an exception for grandparents, it would be a very slippery slope to allowing unrelated third parties to obtain visitation. Parents have a constitutional right to determine what is in their child’s best interest and absent being found unfit, the courts should not intrude on that right.
by Allison A. Anders April 3, 2017 at 09:45 AM
Was the grandmother the father's mother? It is so sad for everyone, especially the child.
by Michele Latanzio Zimmerman April 1, 2017 at 05:15 PM
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