Obtaining Custody Of Your Grandchildren: Legal Hurdles Can Be Overcome
In a perfect world, we would not need to educate ourselves about who is entitled to the custody rights of children because all parents would be suitable and fit to raise their own children. Unfortunately, life is much more complex than that and from time to time, a grandparent may feel the need to step in and obtain legal custody of a grandchild or grandchildren in hopes of providing support in a way that the biological parents are unable to.
According to the last census, performed in 2010, 4.9 million children are being raised solely by their grandparents. In many cases, the child’s parents are deceased. In other situations, the parents are simply unable to parent. Regardless of the reason, Virginia laws allow a grandparent to seek custody of a child under certain circumstances.
The Courts Favor The Parent-Child Relationship When Hearing Custody Cases
Biological parents are presumed to have a right to rear their own children pursuant both to decisions handed down by the United States Supreme Court and under state law as well. In a 2000 decision, the U.S. Supreme Court declared in Troxel v. Granville that a parent’s interest in the care, custody and control of his or her children is a fundamental right despite a grandparents’ claim to additional visitation rights. So if a parent has a constitutional right to raise a child, when may a grandparent seek custody?
Under Virginia law, a court shall give due regard to the primacy of the parent-child relationship, but may award joint or sole custody to a person with a legitimate interest who can show by clear and convincing evidence that the best interest of a child would be better served by being placed with them rather than with the parent.
The law defines a person with a “legitimate interest” broadly and thus includes grandparents and even step-grandparents, among others.
Virginia Law Allows Grandparents Sole Custody Of Grandchildren In Certain Situations
Using a legal test established in the 1986 case of Bailes v. Sours, a grandparent may overcome the presumption that a biological parent is best suited to raise a child if the grandparent can show parental unfitness, a previous order of divestiture, voluntary relinquishment, abandonment or other special facts and circumstances constituting an extraordinary reason for taking a child from his or her parents. The grandparent seeking custody will have the burden of proving one of the 5 circumstances outlined in the case.
Ultimately the court must consider the best interest of the child and in doing so, the will examine several factors including:
- Age and mental aptitude of the child and parents
- The relationship between parent and child
- Needs of the child, including familial relationships
- The role of each parent, both presently and in the future and the propensity of parents to facilitate continued relationships
- The child’s preference
- History of abuse
Although the legal process may seem intimidating, rest assured that with the right legal counsel, you can be successful.
Focus On Your Family And Let An Experienced Leesburg Family Law Attorney Handle The Legal Work
The office of Whitbeck, Cisneros, McElroy PC is dedicated to helping you navigate the complicated and often emotional process of Virginia family law and custody law. Obtaining the aggressive yet understanding advocacy of an experienced Leesburg family law attorney will make your stressful situation less daunting so that you can focus on your family. Please do not hesitate to contact us today to learn how we may be able to help you.