In Virginia, grandparents have rights to custody and visitation with their grandchild under certain circumstances. Primarily, a Virginia family court allows a grandparent to join a custody petition with a non-custodial parent, if the court determines that visitation rights are in the best interests of the child. A grandparent may also file an independent petition for visitation. A grandparent seeking custody or visitation of a grandchild in Virginia should remember that the child's parents determine whether or not a grandparent is entitled to visitation, however, a court will consider a grandparent's arguments for visitation rights and decide accordingly.
Best Interests of the Child
A grandparent seeking visitation in a Virginia family court should be prepared to present evidence that proves visitation will serve the child's best interests, according to the Virginia Tech Virginia Cooperative Extension. The family courts in Virginia do not specifically have a statute that recognizes grandparent rights, however, Virginia grants custody and visitation based on the best interests of the child. The court considers several factors when determining best interests of the child including the child's preference, if the child is of sufficient age and intelligence level to express an opinion; the age, physical and mental condition of the child; the child's needs and other factors deemed to be important by a family court in Virginia.
In Virginia, parents have the fundamental responsibility in the care of and upbringing of their child. Therefore, theoretically, a parent is entitled to say whether or not a grandparent may visit with a grandchild. A state will not get involved with a parent's right to raise a child unless there is a compelling interest. A compelling interest involves an immediate threat to the safety of a child. In Virginia, a grandparent will have to prove that harm will occur to a child if the grandparent is not allowed visitation. In short, a grandparent will need to prove physical or mental harm to a child's health and welfare prior to a court consideration of visitation or custody.
If parents do not agree to give grandparents visitation rights, a grandparent may choose to seek the assistance of a qualified mediator to assist them in reasoning with the child's parent. The Code of Virginia prescribes a method for grandparents to handle visitation problems in a peaceful manner. According to Virginia attorney William Smith, mediation is a preferable method for grandparents because "the process is confidential and private, it's less stressful and disruptive to the lives of those involved and it's inexpensive in comparison to litigation." If parents do not agree to mediation in Virginia, the court is "required to refer the grandparents and parents to a free dispute resolution evaluation session," according to Smith. At the free session, all parties will generally agree to mediation. At mediation, parents may agree to allow the grandparents to visit the child, thus yielding a positive result for all parties involved.