This Guide outlines the custody rights that 3rd parties such as grandparents have in Virginia in child custody cases.
Person with a Legitimate Interest
As a prerequisite to being able to obtain custody rights to a child as 3rd party you must first show that the person petitioning is a "person with a legitimate interest" as defined by the Virginia Code. There are two ways to satisfy this requirement. First, a blood relative meets this requirement. Second, if the 3rd party's relationship with the child reaches the level that the law would consider, then they would qualify as person with a legitimate interest under the law.
In normal child custody cases, the court must decide what custody or visitation arrangement is in the child's best interest. In 3rd party cases, the petitioner must show that granting them custody rights was proven by "clear and convincing evidence" that such rights are in the child's best interest.
Methods to Prove Clear and Convincing Evidence
There are 5 ways that have been recognized by Virginia Law that a 3rd party can obtain custody rights to child. The most popular and seen method is showing that parents are "unfit." For visitation cases, the 3rd party petitioner must show that unless visitation is granted, "actual harm" will result. The only real way of accomplishing this is professional expert testimony from a Licensed Clinical Social Worker, (LCSW), Therapist, or child psychologist or psychiatrist. Absent this testimony, this is basically impossible.
Virginia protects the primacy of parents rights against 3rd parties. To obtain rights as a 3rd party it is very difficult. It can be done, but there must be very specific sets of circumstances and a very good attorney by the petitioner's side.
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