WE ASKED OUR LOCAL FB COMMUNITY THIS QUESTION:
Should Grandparents have Visitations Rights if one parent says no?
FB Community Poll:
Well our Virginia Courts agree with the majority!
Turns out that Grandparents have a statutory legitimate interest in the care, custody & visitation of and with their grandchildren and Grandparents CAN petition for visitation in Virginia.
However, in Virginia there is a presumption in favor of natural parents, whereby such presumption may be rebutted.
The Supreme Court of Virginia, in the Bailes v. Sours, 231 Va. 96, 340 S.E.2d 824 (1986), set forth five circumstances under which the natural parent presumption may be rebutted.
The five circumstances include: 1) parental unfitness (examples include anti-social, immoral, and illegal conduct on the part of the natural parent(s)); 2) previous order of divestiture (example includes a previous custody court order granting the grandparent(s) temporary custody); 3) voluntary relinquishment (example includes a natural parent making no effort to regain custody after allowing another to act as a parent to the child); 4) abandonment; and 5) “special facts and circumstances which justify “taking a child from its parent, or parents,” (example includes spending time with the natural parent causes severe anxiety in the child).
If the grandparent(s) is able to rebut the natural parent presumption, the grandparent(s) stands on equal footing with the natural parent.
The Court will then consider the bests interests of the child and award custody to the grandparent(s) if such is in the best interests of the child. The best interests’ factors can be found at Virginia Code §20-124.3 which include factors such as the age of the child, the reasonable preference of the child, and any history of family abuse.
In addition to the care and custody of their grandchildren, grandparents may also petition the court for visitation with their grandchild(ren). How the court will decide whether or not to award visitation will depend whether or not both parents object to the visitation or only one parent objects.
When both parents object to the grandparents’ visitation, a court will award visitation ONLY if ACTUAL HARM would result to the grandchild(ren)’s health and welfare without such visitation AND visitation with the grandparents is in the grandchild(ren)’s best interests.
Examples of actual harm include actual psychological harm evidenced by a mental health professional’s opinion and physical harm.
The standard is less stringent if only one parent objects. If only one parent objects, a court will award the grandparents visitation if the court finds it is in the grandchild(ren)’s best interests.
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