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Burden of proof in third-party visitation; harm; and due process of the parents

Virginia Beach, VA |

Who has the burden of proof in third-party (grandparent) visitation cases, where both parents are in agreement over ceasing visitation rights, are an intact family, and have given ample opportunity for visitation to resume with the minor children? I believe it's the grandparent, but I want to make very sure that that is how VA operates.

How do the Williams' Standard and Troxell v. Granville apply; what what is the level of harm that must be met for the best interest of the children and the rights of the parents under due process to be less of a consideration in visitation decisions?

Or, could you steer me in the correct direction to find the Virginia code that applies? I have (obviously) found the applicable cases, but I'm not a lawyer and intricacies of VA law are unknown to me.

*Edit* For the actual harm standard, is it a scale, interpretation, or mitigating circumstances that show harm?

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Attorney answers 3

Best Answer
Posted

The petitioner in any case has the burden of proof in showing they are entitled to that relief to which they are seeking. The applicable codes on child custody and visitation are 20-124.1 and 20-124.1. As you have discovered, the law has many "intricacies". You should not be handling a child custody/visitation case without legal counsel, particularly when you are seeking third-party visitations. You should consult with a Virginia Beach child custody and visitation attorney.

Responding to questions on AVVO does not establish an attorney-client relationship between the questioner and any attorney associated with Garrett Law Group, PLC. Responses should be considered and used for informational purposes only. Every case is unique in its facts, and all legal matters should be discussed with a licensed attorney prior to making any decisions or taking any actions.

Anneshia Miller Grant

Anneshia Miller Grant

Posted

Those codes are 20-124.1 and 20-124.2

Asker

Posted

Thank you. My mother is an attorney, just not licensed in VA. While I am mostly out of my element, we are completely within hers. However, if we need a quick question, we will give you a call. Thank you very much for taking time out of your day to address this. I appreciate it immensely.

Asker

Posted

Oh, and I am not seeking the visitation; I'm trying to stop any visitation. I'm the mother.

Anneshia Miller Grant

Anneshia Miller Grant

Posted

If that's the case, then you may have a much easier road to travel. What does the father say about the visitation, and is the grandmother his mother or yours. If the the father agrees with you, then the grandmother must prove "actual harm" to the child (not her) for denying visitation.

Asker

Posted

My husband and I are in complete agreement on this matter. It is his mother that is petitioning for visitation. I wrote above the essentials of my case, but (short version), she endangered my children while inebriated on two occasions. We were unaware that this happened until my daughter told us. We stopped visitation and communication until she sobered up and went to AA (I wanted proof of her sobriety), which she failed to do. There was no contact from June until December, except one occasion when we allowed our daughter (eldest child) to call her and say things she felt she needed to say. This resulted in no change in her behavior; she stated that she did not have to stop drinking. Again, we (I have the emails) told her that she must be sober for visitation to resume. At Christmas, we allowed a short visit. Since then, she has showed up at our home for both children's birthdays and Easter, unannounced and unwelcome. After she showed up at Easter, I texted her and asked her to mail any future gifts that she got the kids because neither wanted to be placed in the middle of her issues. My youngest is essentially uninterested in seeing her, and only wants to when gifts are promised (i.e. Christmas.)

Asker

Posted

I also have access to LexisNexis through ODU. I have the Williams case, and the Troxel highlights (my mother knows the case well, as she's argued both sides of the table). So, if there is another precedent case that could be helpful, I can pull that off of the database.

Anneshia Miller Grant

Anneshia Miller Grant

Posted

You seem to have everything on the right track, and I don't see how the grandmother can make her case from your fact pattern. Good luck!

Asker

Posted

Thank you...Here's crossing my fingers! You've been an amazing help, and I appreciate it very, very much. If there is ever anything I can do to return the favor, don't hesitate to ask (unless it's legal research, not my cup of tea.)

Anneshia Miller Grant

Anneshia Miller Grant

Posted

I'm happy to have been able to help. Attorneys on AVVO donate their time to answer questions. Users may mark answers as helpful or visit attorney profiles to offer reviews as you see fit. Thank you and good luck.

Posted

You have asked alot of questions. Could you be more specific concerning the background of the grandparents visitation and what the circumstances of the changes are? Was the grandparent visitation Court ordered or by agreement?

Asker

Posted

This is a new case; no previous court proceedings in regards to my children and their paternal grandmother. My husband and I are in firm agreement over suspending visitation, and have given ample opportunity for her to resume visitation, pending sobriety and proof of such. My mother in law made a serious misjudgement while having care of my children on two occasions, which my daughter informed me of last year (approx June). We (my husband and I) ended communication and visitation and informed her, through email (which I have) and text message (which I have), that she was to go to AA and be sober for 3 months for communication to be resumed and six months for visitation. Against my better judgement, my husband and I allowed a visit on neutral ground at Christmas for about an hour. After that, she showed up at my home on each birthday and Easter, unannounced and unwelcomed. We allowed our eldest to go see her, in our driveway, for a very short time, with us both watching. My youngest didn't wish to see her. The August after we cut off communication and visitation, we allowed our eldest to call her, because she asked to be allowed to, so that she could say things that she needed and wanted to say. I was listening the whole time. When my daughter asked her to stop drinking, her response was that she didn't have to. She claims she has been sober for eight months, at last contact, but will furnish no proof on the matter. We (my husband and I) cannot trust her again with the care of our children until she provides proof, and continues to provide proof, of her sobriety.

Asker

Posted

I am a grad student; this has really been a hindrance on my time and my attention on things that I must get done. This has not been a very amusing year.

Asker

Posted

Previously, visitation was mutually agreed upon. The children and her had a good relationship, but not a great one. Each child has issues with her behavior toward them; she would come to our home and ignore them for the internet, and snap at them when they tried to engage her. When another adult was also in the home, she would dote on them. They have asked my husband and I why she only did that then, but wouldn't address them otherwise. She has rarely taken our youngest anywhere, but takes our oldest everywhere. She purchases our eldest expensive gifts, and gets our youngest dollar store toys (which he does notice.) Anymore background information that would be helpful, please ask. We trusted her to remain sober while our children where in her care and had no suspicion that she would endanger our children. We have always known that she had an issue with alcohol, but we never suspected that is was a problem until my daughter told us 'their little secret.'

Posted

The grandparents have the burden. If both the mother and father agree on denying grandparent visitation, then the grandparents need to prove their lack of visitation will cause the child "actual harm". A very high burden. See Va. Code 20-124.1 and .2. The grandparents must prove the "actual harm" test by clear and convincing evidence.

NOT LEGAL ADVICE. FOR EDUCATION AND INFORMATION ONLY. Mr. Zeigler is licensed to practice in the Commonwealth of Virginia, United States Court of Appeals 4th Circuit, United States Bankruptcy Court (E.D. VA) and United States District Court (E.D. VA). Any comments posted are based on an analysis of only Virginia law or relevant federal law and the limited facts given. There is no implied or actual attorney-client relationship arising from this posting. You should speak with an attorney licensed in your state, to whom you have provided all the facts before you take steps that may impact your legal rights.

Deborah Ann Johnson Wilson

Deborah Ann Johnson Wilson

Posted

In 3 party custody matters, the case will originate in the J&D Court. VA Code section 16.1-214, et. seq. provides the statutory basis for standing. Once this has been established, the petitioner will have the burden of proof. The best interest standard does not kick in until the petitioner has demonstrated "actual harm," as defined in the Williams case. All of this is predicated upon the objection of both parents. Please contact an experienced family lawyer because third party custody cases are by definition very complex.

Deborah Ann Johnson Wilson

Deborah Ann Johnson Wilson

Posted

Typo in the code section: 16.1-241, et seq.

Asker

Posted

Thank you, very much. My mother is a family lawyer, but not licensed in VA. I'm just doing some fine-tuning to my case.

Asker

Posted

It's not a custody case, but a visitation case. I couldn't find any of the codes that fit.

Deborah Ann Johnson Wilson

Deborah Ann Johnson Wilson

Posted

The Court will generally apply the same legal analysis used for custody to matters of visitation. If both parents object, the actual harm test applies and the legal standard is by clear and convincing evidence.

Asker

Posted

Thank you. My mind works by concrete scales and limitations, which isn't usually how law works (at least, American law.) Is there a scale that must be applied? Or indicators and mitigating factors? Or, is this interpretive to each judge and each case? I understand that I am asking a lot of complex questions, but I do not want to walk into the court room unaware of one tiny innuendo in the language that will make or break my case. While I am not a lawyer, nor a law student, I am intelligent enough to understand the complexities, as I do this with international relations and war/security.

Deborah Ann Johnson Wilson

Deborah Ann Johnson Wilson

Posted

Unfortunately, it is a subjective analysis. :-( It is probably best that you confer with an experienced family law attorney in your area to ask specific questions.

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