Elizabeth G. Thorne
Sometimes grandparents make all the difference when life gets tough. Parents of young children can encounter difficulties in life that make it challenging or impossible for them to be good providers for their children. Perhaps they suffered a job loss and cannot afford stable housing, or they are struggling with substance abuse. In such cases, the child’s grandparents or other extended family may step in to provide a temporary home for the child, a situation known as kinship care.
Kinship care sometimes happens with the approval and gratitude of the child’s parents, in which case the parties should sign a formal entrustment agreement or obtain an uncontested court order reflecting their custody agreement. In the absence of such documentation, the grandparents are likely to encounter problems with third parties when managing the child’s medical, educational, and other needs.
In 2013, in recognition of the crucial role played by extended family in caring for children, Virginia law was amended to make it easier for kinship care providers to enroll a child in the relative’s school district. Instead of needing a court order transferring custody, the relative can provide an affidavit signed by one or both parents and the relative providing kinship care, reciting the reasons for the alternative care arrangement and other pertinent information.
If the family cannot agree on who should be the child’s primary caregiver, the parties may wind up in court asking the judge to decide what is best for the child. The law strongly favors the rights of parents over non-parents. The U.S. Constitution has been interpreted as giving parents a fundamental liberty interest in the care, custody, and control of their children. Virginia law does not specify any particular rights for grandparents or other relatives. Nonetheless, anyone with a “legitimate interest” in a child, such as a grandparent, other blood relative, step-parent, or former steppar, may petition the court for custody or visitation.
If the relative’s request for custody is opposed by the child’s parents, the relative has the burden of proving by clear and convincing evidence (i) parental unfitness; (ii) a previous court order divested custody from the parents; (iii) voluntary relinquishment of custody; (iv) abandonment; or (v) other extraordinary circumstances. Once the relative proves the existence of one of these factors, the parents and relative are on equal footing and the court turns its focus to the best interests of the child. The best interests of the child may dictate placing the child with the parents, relative, or jointly with both. Typically, if a relative has been awarded custody of a child and a parent expresses a desire to have the child return home, the court will try to effectuate a return home as soon as the parent’s stability has improved and he or she can meet the child’s basic needs.
When parents refuse to allow grandparents time with the child, grandparents may petition the court for visitation. Because of the parents’ fundamental right to raise their child as they see fit, Virginia law does not give grandparents an automatic right to visitation. To prevail over the united objection of the parents, grandparents must prove that the child will suffer “actual harm” if visitation is not ordered. It is usually quite obvious to the grandparents that the child would suffer harm if they were not an active presence in the child’s life. From a legal standpoint, however, proving actual harm is a high barrier to overcome. It often requires the testimony of an independent professional, such as a counselor, who knows the child well and can express an educated opinion about the potential impact on the child’s mental health.
If only one parent objects to the grandparents’ visitation and the other parent supports the request, the court applies the “best interests of the child” standard. It is much easier to show that it is in the best interests of the child to have visitation than it is to prove actual harm without visitation. As a result, having one parent as an ally will greatly increase the odds of grandparents maintaining a meaningful relationship with the child.