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No guardianship where living father still has legal custody

A minor child’s maternal grandparents cannot be appointed as the child’s guardians because her father is alive and has legal custody of the child.


Petitioners are the maternal grandparents of a 15-year-old child whose mother died in 2012. She has lived with her father, the respondent in this case, in Germany for the past eight years. Petitioners frequently cared for the child when they worked in Germany. When petitioners returned to the United States, the parties decided the child should move to the United States so that petitioners could continue to care for her.

Instead of sharing custody or transferring custody to petitioners, respondent, along with petitioners and the child, signed a consent order that would appoint petitioners as the child’s guardian. They have asked the court to approve the order. 

“The Petitioners seek guardianship under a statute designed to provide authority for testamentary guardians so that they can help [the child] get a social security number, driver’s license, and add her to their health insurance, among other things.”


“The Petitioners’ reliance on Code of Virginia Sections 64.2-1700 et seq. and their predecessor statutes is misplaced. Examining the statutes’ structure, history, and applicable caselaw leads this Court to conclude that the statutes were intended to address issues of testamentary guardianship. Instead, a custody petition in the appropriate court is the proper avenue authorized by the General Assembly. …

“Petitioners overstate that they are without remedy under the [Uniform Child Custody Jurisdiction and Enforcement Act] if the guardianship statutes do not apply in this circumstance. First, there is arguably jurisdiction under Code of Virginia Section 20-146.12 (2016). Even if no jurisdiction exists, Petitioners can wait the requisite six months and file a petition for custody as interested parties pursuant to Code of Virginia Section 20-124.2(B) (2016 & Supp.2020).

“Under that section, Petitioners and Respondent could petition for and be awarded joint custody of [the child] upon a showing of clear and convincing evidence that her best interests would be served. … Parties have likely already met that standard as demonstrated by the parties’ and [the child’s] consent. Lastly, this Court presumes there is another legal avenue for petitioners to pursue: a custody or guardianship determination in Germany. …

“[T]he Court finds that it does not have the authority to appoint a guardian of a minor’s person while the natural guardian is still living.”

The petition is denied “without prejudice to parties to petition for custody in the appropriate Juvenile and Domestic Relations Court.”

In re: Doe., Case No. CL-2020-0011723, Dec. 2, 2020, Fairfax County Cir. Ct. (Ortiz). Patricia E. Tichenor, Dirk R.K. Kraemer (respondent) for the parties. VLW 020-8-139, 9 pp.

VLW 020-8-139

Virginia Lawyers Weekly