Jane hugged her two children for what turned out to be the last time. Her husband, John, was distraught and started drinking — again — to handle the stress as her illness progressed. Jane’s parents were in the room, too, and had grown increasingly concerned about what would happen to their grandchildren after she passed away. Before she passed, they whispered in her ear: “Don’t worry, dear. We’ll take care of them.” That pledge began a legal odyssey for the entire family, as the grandparents proceeded to seek legal custody of the children.
While the court generally believes a child’s best interests are served by remaining with his or her biological parents — or that the child should at least be able to visit his or her biological parent — many circumstances may prevent this, such as adoption, divorce, or the removal of a child due to a parent being declared unfit.
Family law attorneys Alan Plevy and Kyung (Kathryn) Dickerson say the Commonwealth of Virginia allows persons with a “legitimate interest” in maintaining a relationship with the minor child the opportunity to petition for custody.
Do grandparents and siblings have child custody rights in Virginia?
“It is typical in battles over custody for the court to work to keep the child with his or her natural parent,” says Plevy. That tendency was reinforced in 2000, when the U.S. Supreme Court ruled that parents have the ultimate right to custody over their children and grandparents and other guardians do not. This custodial right belongs only to the parents; the rights of other relatives are second to that of the parents in the eyes of the court.
Moreover, petitioning for custody can be complicated, says Dickerson. A petitioner may be granted custody if they can prove:
- The biological parent should not have the legal right to custody
- Granting custody to the non-parent would be in the best interest of the child
Before the court determines whether to award custodial rights to the grandparents, the court will consider the arguments from the current guardians of the child, the biological parents, the party requesting custody, and/or other caretakers of the child.
The court will also take into account the fitness of the biological parent to raise a child. The court will consider the mental stability of the parent, the age and developmental needs of the child, the relationship between the parent and child, any history of abuse within the family, and more.
Family members may argue over who is best suited to raise the child or who should be permitted in the child’s life, but the Judge will ultimately make the decision based on what will be most beneficial to the child — regardless of the wishes of parents and other relatives — taking into account the mandates of the law.
When to speak to an attorney
If you have any questions regarding custody rights or any other family law matters, please contact Alan Plevy at abplevy@smolenplevy.com or Kyung (Kathryn) Dickerson at kndickerson@smolenplevy.com.
About the Authors
Alan Plevy
Alan Plevy is a recognized force in family law, mediation and litigation, with more than 40 years as one of the most experienced divorce lawyers in Virginia. Mr. Plevy is known for being a tenacious litigator and negotiator who is zealously devoted to his clients. A top legal publication, Virginia Lawyer Weekly, noted Mr. Plevy’s impact on the law when it named two cases he litigated among its Top Five Landmark Family Law Cases in Virginia. Those two cases, which date back to the 1980s, are still regularly cited by attorneys and courts.
Kyung (Kathryn) Dickerson
Kyung (Kathryn) Dickerson is a principal at SmolenPlevy in Vienna, Virginia. She is a graduate of the University of Virginia and George Mason University School of Law, where she served on the Board of Editors for the Journal of International Legal Studies. Ms. Dickerson is also presently General Counsel for the Asian Pacific American Bar Association of Virginia and has served as President of the organization and on its Board of Directors. She has also served on the Board of Directors of the Virginia Women Attorneys Association and served as its President. She has served on numerous committees of the Fairfax Bar Association and as President of its Young Lawyers Section and as Co-Chair of the Revenue Development Committee.
