A petition for custody and/or visitation may be filed by either parent of the child or by any “person with a legitimate interest“. Virginia law states that a person with a legitimate interest shall be broadly construed and may include, but not be limited to, grandparents, stepparents, former stepparents, blood relatives and family members, such as aunts, uncles or adult siblings. Once the Court finds that a person who has requested custody or visitation qualifies under this definition, the Court may then consider the best interest of the child in making a determination regarding whether custody or visitation should be granted.
Any person who has had his her parental rights terminated by the Court, or who seeks access to the child for another who has had their rights terminated, voluntarily, involuntarily or by adoption, may not be considered a person of legitimate interest regardless of the ties to the child. Anyone who has been convicted of rape, carnal knowledge, or molestation of their own child will also not be considered a person of legitimate interest.
There is a presumption in favor of biological parents and a parent’s right to decide visitation for their child. Therefore, where both biological parents agree that a third party should not have visitation with their child, the Court will typically not interfere with that decision, unless the person of legitimate interest can demonstrate that the child would suffer actual harm if visitation were denied.
Actual harm may exist where a parent has voluntarily placed the child in the custody a grandparent for a substantial period of time, and the child developed a close bond with the grandparent. Then the parent decides to take the child back and doesn’t allow the grandparent to see the child. The court may find the relationship of the grandparent and their grandchild is an important part of the child’s life, and the child would 1) actually suffer should the relationship be discontinued, and 2) there is clear convincing evidence that that the relationship was in the best interest of the child.
Since the law is pretty broad in this area, these cases are very fact specific. The Court will be concerned with the parental fitness; whether a third party is a person with a legitimate interest; the length, time, and type of relationship that a person of legitimate interest has had with a child; whether it benefits the child to begin or to continue a particular relationship; any objection that the parents may raise about visitation with a third party that has filed a petition. Ultimately The Court will make a decision that is in the best interest of the child given all of the evidence before it.
If you believe that you are a person with a legitimate interest seeking custody or visitation with a child, or if you are a parent seeking to object to a third party who has filed for visitation with your child, you should seek the advice of a Virginia Beach child custody attorney. (757) 422-0195.