The father of my child has been absent by choice for about 5 months out of her 8 months of life due to denial and joining the National Guard. There is a GAL involved with us, and she talks to me, but other than a letter from her father, has not had contact with him. However, GAL has visited with his parents as well as is communicating with them about our child, and what they want. His parents are being encouraged by the GAL to ask for things that are on the father's legal agreement as well as extended visits and overnight visits-which were not agreed upon in a temporary agreement. Since the father's parents have no legal ties to our child, is it legal for GAL to be encouraging them to ask for things that are the father's rights and communicate what they-not their son want to the GAL?
"Person with a legitimate interest" in custody and visitation of a minor child "....shall be broadly construed and includes, but is not limited to grandparents, stepparents, former stepparents, blood relatives and family members provided any such party has intervened in the suit or is otherwise properly before the court. The term shall be broadly construed to accommodate the best interest of the child." Va. Code Section 20-124.2
Under Va. Code Section 20.124.7, a parent who is a member of the National Guard is considered a person to whom the "Virginia Military Parents Equal Protection Act" applies. Va. Code Section 20-124.8(B) of said Act specifically provides, in relevant part, as follows:
"B. The court, on motion of the deploying parent or guardian to delegate visitation to a family member, including a stepparent, with whom the child has a close and substantial relationship and upon finding that such delegation is in the best interests of the child, may enter an order delegating visitation that:
1. Delegates all or a portion of the deploying parent's or guardian's visitation rights to such family member, if the deploying parent or guardian had visitation rights with the child prior to the deployment; or
2. Provides visitation rights to such family member, if the deploying parent or guardian had physical custody of the child prior to the deployment and the nondeploying parent or guardian, or a family member of the nondeploying parent or guardian, is awarded physical custody during the deployment. "
However, this Section further provides in relevant part that "...[a]n order delegating or providing visitation rights to a family member pursuant to this subsection does not create a separate right to visitation in the family member to whom visitation rights are delegated or provided."
What all of this means is that, if the father is "deployed" as that term is defined under Va. Code Section 20-124.7, then the father can delegate their time with the child to a family member (such as his parents/the child's grandparents), rendering the GAL's conversations, etc. with the grandparents entirely legitimate, proper, and arguably required of the GAL considering the applicability of the VA Military Parents Equal Protection Act. However, this particular Act (as it states) does not create new, additional, or broader visitation rights to the stand-in family members.
For expanded rights of custody or visitation, the grandparents would need to intervene in the suit or otherwise be properly before the court (which they probably are BECAUSE of the applicability of the VMPEPA) as persons with "a legitimate interest" as defined under 20-124.1 (which they are).
So, the long and short of the situation is that the GAL is not doing anything wrong, illegal, improper, or beyond the GAL's role by communicating with the grnadparents, etc. It is not the GAL's role to provide any legal advice to the grandparents or to advocate to the court on their behalf, however. The GAL's role is to represent the best interests of the child.
I hope the foregoing general information will be helpful to you, rather than adding additional layers of confusion. If possible, it would be extremely helpful for you to hire your own counsel to represent you in the case.
This response does not create an attorney-client relationship and is intended for general information purposes only.
Would not the father's parents be the child's grandparents?
The best interests of the child states at factor "4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;"
They would be at least extended family members.
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