Grandparent rights in Virginia: Grandparents win child custody case

A recent case provides an example of grandparent's rights in child custody cases in Virginia.

Raising a child is no easy task. This is particularly true when the parents are not in agreement over the best way to raise the child. In some cases, the dispute can reach past the nuclear family unit and impact extended relations, like grandparents.

A recent case provides an example. It involves parents who cannot agree on the best way to raise their child. Neither can care for the child, and both have a different preference on who should receive custody. The mother states her parents, the child's maternal grandparents, should receive custody. The father voices concern about the grandparent's ability to raise the child and instead states his brother, the child's paternal uncle, should receive custody. The case went to court and the lower court found in favor of the grandparents. The father appealed the case to the Court of Appeals of Virginia.

Background of the case: Grandparents fight for child's best interests

The case involves a child born to a mother who battled mental illness and alcoholism and was unable to properly care for the child. The father was also unavailable, as he was serving a prison sentence. As a result, whenever the mother could not care for the child, the child lived with his maternal grandparents. This arrangement continued "on and off" since infancy.

The grandparents worked to help the child manage his own health issues, including diagnosis of Asperger's Syndrome and Social Communication Disorder. They supported him while he attended a residential program to learn how to manage his emotions and provided him his own room when he lived in their home. As the mother's health deteriorated, the grandparents requested custody of the child. The mother, who had custody at the time, agreed. The grandparents filed a motion with the court to gain custody. The father disagreed, stating he preferred the boy move in with his paternal uncle. The paternal uncle had not had contact with the boy for approximately six years, was unaware of his health needs but stated he would be willing to take in the child.

The judge spoke with child, who voiced his preference for living with the maternal grandparents. This, along with the fact the child had made recent improvements, were used to support the maternal grandparent's push for custody. Ultimately, the court agreed and awarded custody to the grandparents.

Implication for other grandparents: The importance of the "best interest" standard

This case, like most child custody determinations, hinged on the application of the best interest of the child standard. This legal standard is key to these cases. Anyone who is looking to fight for custody of the child must provide evidence that it is in the child's best interest to be in their care. When determining the best interest of the child, the court will consider the child's age, health and interests as well as the proposed custodian's age, health and interests. Additional factors can include the needs of the child, the role the proposed custodian has thus far played in the child's upbringing and the ability of the proposed custodian to care for the child.

Custody is only one option for grandparents who wish to remain in their grandchildren's lives. In some cases, visitation is a viable alternative. Those who are struggling with child custody agreements and looking to spend more time with their family are wise to contact an attorney to discuss their options and find the best solution for their situation.