There is an old saying that warns, “If you don’t raise your children right, you’ll end up raising your grandchildren.” The reality is, however, that many grandparents and other, non-traditional custodians take on the responsibility of raising children for a variety of reasons, and it usually has absolutely nothing to do with their performance on the first go-around. As a family law attorney, one of the most common inquiries I receive relates to non-parent custody and, more specifically, the standard for obtaining custody in place of a biological parent. The short answer is: it can be very difficult, especially if the parent puts up a fight.
While questions of custody and visitation in Virginia are ordinarily determined by analyzing the “best interests of the child” factors laid out in Virginia Code § 20-124.3, when asked to consider awarding custody or visitation to a nonparent, the court is required to perform a different analysis. With regard to custody, the law presumes that the child’s best interests will be served in the care of his or her biological parent and that presumption can only be rebutted when certain factors are established by clear and convincing evidence. Those factors include 1) parental unfitness; 2) a previous order of divesture; 3) voluntary relinquishment; 4) abandonment; or 5) special facts and circumstances constituting an extraordinary reason for taking a child from his or her parent.
Only after successfully rebutting this presumption can the court begin its typical analysis under the “best interests of the child” standard. Obviously, each of these factors can be substantially litigated, and factor No. 5, “special facts and circumstances,” has never been clearly defined, but the courts have often analyzed the issue in a manner similar to the “actual harm” test used in nonparent visitation.
With regard to whether or not a non-parent should be granted visitation with a child, the non-parent must prove that the child would suffer “actual harm” to his or her health or welfare by not being allowed to see the non-parent. There is no question this is an extraordinarily high bar to meet because the non-parent would need to present evidence that his or her being kept out of the child’s life will somehow physically or psychologically injure the child. Further, the courts have repeatedly found that “actual harm” cannot be satisfied by simply showing that it would be beneficial in some way for the child to have visitation with the non-parent.
Virginia’s Fourth Judicial Circuit has agreed that the “actual harm” test for visitation is virtually the same standard that should be applied when analyzing “special facts and circumstances” for awarding a non-parent custody. In the December 2017 case, Brown v. Hawkins, the Norfolk Circuit Court transferred custody of a 9-year-old child from her grandmother to her father, despite the fact that her father had only seen her sporadically during her life and was totally absent during an extended period of time while he was incarcerated. Additionally, the grandmother’s petition for custody was supported by both the child’s biological mother as well as the child’s guardian ad litem (an attorney appointed to represent the interests of the child). There was also no question that the child had been extremely well cared for while living with her grandmother over the years. Nevertheless, the grandmother was unable to show how the child would suffer actual harm if her father was granted custody.
Obviously, Brown is just one example, but it helps to demonstrate just how difficult it can be for a non-parent to obtain custody, or even be granted visitation with a child when the biological parent(s) object. Regardless, if the non-parent believes the child is in danger, or is not being adequately cared-for in his or her current circumstances, filing a petition for custody or visitation may still be a worthwhile endeavor. After all, as John F. Kennedy so eloquently put it, “[Our] children are the world’s most valuable resource and its best hope for the future.” I think most would agree that the interest in protecting them should far exceed the constraints of biological attachment.