By Melissa VanZile
Third-party custody and visitation are among the more challenging custody issues for family law practitioners and courts, as they involve people who may not be a child’s parent but a person who has usually played an active role in the child’s life and wants to continue to be able to do so.
However, the continuing relationship with the non-parent and the child must also be considered in light of a parent’s fundamental and constitutional right to make decisions for his or her own child, including who that child spends time with.
As family law attorneys, we see on a daily basis that every family we help has a different make-up. A child’s immediate family may or may not consist of two biological parents and it may involve grandparents, stepparents and other family members. The unique makeup of each family and the people involved in those children’s lives pose a unique set of facts and legal issues in custody and visitation cases, some of which are outlined below.
In custody and visitation cases determined by the court, “the court shall give due regard to the primacy of the parent-child relationship but may upon a showing by clear and convincing evidence that the best interest of the child would be served thereby award custody or visitation to any other person with a legitimate interest.” Virginia Code § 20-124.2(B).
Pursuant to Virginia Code § 20-124.1, a “person with a legitimate interest” has standing to seek custody and visitation rights. This term has been interpreted broadly to include but not be limited to grandparents, stepparents, step-grandparents, former stepparents, blood relatives, and family members. It excludes any person whose parental rights have been terminated, any person whose interest derives from or through a person whose parental rights have been terminated, and any person who has been convicted of certain criminal sexual offenses when the child who is the subject of the petition was conceived as a result of such violation. Va. Code § 20-124.1.
Virginia has long recognized the preference of natural parents over third parties in custody disputes. “[A] fit parent with a suitable home has the right to the custody of his child superior to the rights of others the law presumes that the child’s best interests will be served when in custody of its parents.” Judd v. Van Horn, 195 Va. 988 (1954). This parental preference is in line with decisions of the Supreme Court of the United States, such as Troxel v. Granville, 530 U.S. 57 (2000), which held a Washington state third-party statute unconstitutional and determined that a fit biological parent had a right to determine visitation of the paternal grandparents.
To take physical custody of a child from his or her natural parent, a third party must prove by clear and convincing evidence an extraordinary reason for depriving the natural parent of custody. The Bailes case lays out the five scenarios which rebut the legal presumption in favor of natural parents: parental unfitness, a previous order of divestiture; voluntary relinquishment; abandonment; and a finding of special facts and circumstances constituting an extraordinary reason for taking a child from its parent. Bailes v. Sours, 231 Va. 96 (1986). If the third party can meet this burden of proof, then both parties stand equally before the court, with no presumption in favor of either. Brown v. Burch, 30 Va. App. 670 (1999).
Once custody has been determined and a visitation order entered giving visitation rights to a third party, if the custodial party then seeks to terminate and/or reduce visitation, he or she must show that denying visitation with the third party who has court ordered visitation would be in the best interest of the child. Albert v. Ramirez, 45 Va. App. 799 (2005). In Albert, the court considered whether it was necessary to apply the presumption in favor of awarding child custody to a natural parent where petitioner, stepfather, and respondent, mother, had entered into an order granting the parties joint legal custody and physical custody of the child.
The appellate court found that the trial court had erred in awarding mother the modification of visitation to stepfather since mother had failed to show a material change in circumstances or that denying visitation would be in the best interests of the child. Importantly, the court discussed that it should not be the third party’s burden to show actual harm if the child no longer enjoys visitation with that individual. The Court of Appeals in Rhodes v. Lange, 66 Va. App. 702 (2016) also held that the actual harm standard did not apply where the mother sought to modify an existing visitation order giving visitation rights to the child’s grandparents. The court applied the two pronged-test of Keel v. Keel, 225 Va. 606 (1983) to first determine if there had been a material change in circumstances since the current visitation order and if so to then determine if the change would be in the best interests of the child. In Rhodes, the court found that though there had been an agreed upon change in circumstances, that modifying the current visitation order granting visitation to the grandparents was not in the child’s best interest.
The court’s ruling in Denise v. Tencer, 46 Va. App. 372 (2005), further affirmed that the court must remain focused on the best interest of the child when dealing with individuals who have a legitimate interest in custody. The court held that “the actual harm standard does not apply where one parent objects to the third party’s request for visitation, but the other parent affirmatively requests that the third party be allowed visitation.” Yopp v. Hodges, 43 Va. App. 427 (2004); Dotson v. Hylton, 29 Va. App. 635 (1999).
The Court of Appeals addressed the actual harm standard in Griffin v. Griffin, a non-parent visitation case. Griffin v. Griffin, 41 Va. App. 77 (2003). The petitioner seeking visitation with the child was the husband but not the biological father of a child born into his marriage. The trial court granted visitation over the mother’s objections and the appellate court reversed. The Court of Appeals held that the “actual harm standard must be understood as conceptually different from, and significantly weightier than, the best-interests test, and that it is irrelevant, to this constitutional analysis that it might, in many instances be ‘better’ or ‘desirable’ for a child to have visitation with a non-parent.” Thus, without a demonstration of actual harm to the child if there is not visitation, the court will not apply the best-interests test.
“Courts may grant visitation to a non-parent in contravention of a fit parent’s expressed wishes only when justified by a compelling state interest.” Williams v. Williams, 24 Va. App. At 783, 485 S.E.2d at 654. The burden of proof is on the moving party requesting visitation to show by clear and convincing evidence that both actual harm would occur to the child’s health or welfare without such visitation and then that the visitation is in the child’s best interest.
“To justify a finding of actual harm under the clear and convincing burden of proof, the evidence must establish more than the obvious observation that the child would benefit from the continuing emotional attachment with the non-parent. No doubt losing such a relationship would cause some measure of sadness and a sense of loss which, in theory, “could be” emotionally harmful. But that is not what we meant by “actual harm to the child’s health or welfare.” Stradter v. Siperko, 52 Va. App. 81 (2008).
If your client is a third party who is seeking visitation of a child, you should evaluate the case to first to determine if this person falls within the definition of a person with a legitimate interest. It should then be determined if the actual harm standard will apply to your case.
If one of the parents will support the visitation with their child and the third party, it will be necessary to ensure that person testifies at the hearing to testify that he or she affirmatively requests visitation with his or her child and the third party. A parent’s silence or absence is not sufficient.
The parent must come to court to affirmatively request the visitation with the non-parent. Having a fit parent as a witness requesting the third party visitation will eliminate the need to prove actual harm to the child if the visitation with the third party does not occur and the standard is what is in the best interest of the child.
If the facts of your case require you to prove by clear and convincing evidence that there would be actual harm to the child if the visitation does not occur with the child and your client, it is important to determine at the outset of the case what evidence can be presented to the court to prove actual harm including the use of expert testimony.
As the case law bears out, many of these cases turn on whether there was a mental health expert, who had seen the child, testify that actual harm would occur to the child if visitation with the third party did not occur.
joined Barnes & Diehl in 2013, after nine years as a lawyer at another Richmond-area family law practice. A 2001 graduate of Mary Washington College, she earned her law degree from the University of Richmond in 2004. She has served as president of the Metropolitan Richmond Women’s Bar Association and a past board member of the Metro Richmond Family Law Bar. She is a member of the Richmond, Henrico County and Chesterfield County bar associations. She has been listed in Virginia Super Lawyers since 2012; for her first two years, she was tabbed a Rising Star. In 2016, she was selected as a Leader in the Law by Virginia Lawyers Weekly. This year, she was listed in Best Lawyers in America under Family Law. Melissa has written and lectured extensively on family law, including presentations to the Virginia Bench-Bar Conference.