Over the last several decades, expectations of the traditional family unit changed tremendously. Thus, instead of the conventional nuclear family (two parents and children), the modern structure of what society considers a “family” is rapidly evolving. As a result, family law courts are faced with an increasing number of third-party custody and visitation cases, with non-parents seeking to preserve or expand their relationships with a child.

The United States Supreme Court recognizes the interests of parents in the care, custody, and control of their children as one of the oldest fundamental liberties afforded by the United States Constitution. However, as the modern familial structure expands, in Virginia, the law permits certain third parties with “legitimate interests,” such as grandparents, aunts, uncles, siblings, distant family members, or former stepparents, to seek custody and/or visitation rights over the objection of the parent(s).

Third Party Custody Disputes

In custody disputes between third parties and parents, whereby a third party is seeking to take over the legal and physical care and control of a child, the fundamental liberties of the parents will be respected. In fact, Virginia law presumes that the child’s best interests will be served when in the custody or care of his or her parents.

Nevertheless, a third-party, with a legitimate interest may rebut this presumption by presenting clear and convincing evidence that the child will experience actual harm, unless removed from the parents’ custody, because of one of the following factors:

• A finding of parental unfitness;
• A previous order of divestiture of parental rights;
• voluntary relinquishment of custody of the child by the child’s parents;
• parental abandonment of the child; or
• Special facts and circumstances that create an extraordinary reason for taking a child from its parent.

Only upon a finding that the presumption (that favors the child’s parents) is rebutted by clear and convincing evidence will the court then consider the best interests of the child in making a custody determination.

Third Party Visitation Disputes

In visitation disputes between third parties and parents, whereby a third party is seeking a period of access to the child, similarly to custody disputes, trial courts must respect the parent-child relationship and the parents’ desires for the child.

Nevertheless, the court may award visitation to a third party, over the unified objection of the child’s parents if the court finds clear and convincing evidence that the child will experience actual harm to his or her health or welfare without such visitation with the third party. Actual harm is not established by showing that visitation with a third party would be better, desirable, or beneficial for the child. Rather, actual harm must be proven through compelling (not speculative) circumstances that suggest close to parental unfitness to force visitation with a third party. If the third party can prove actual harm to the child (if visitation with the third-party is denied), then the Court must determine whether the proposed visitation is in the best interest of the child.

Whether you are a third-party claimant or a parent opposing a third-party claim, it is imperative to understand the complexities and differences in legal standards in a custody or visitation dispute in Virgina. Therefore, if you are faced with a third-party visitation or custody dispute, please contact Alexandra Fletcher at (703) 525-4000 or afletcher@beankinney.com.

This article is for informational purposes only and does not contain or convey legal advice. Consult a lawyer. Any views or opinions expressed herein are those of the authors and are not necessarily the views of any client.