Sometimes a parent, or both parents, of a child refuse to let extended family members visit and spend time with the child. Oftentimes this happens with a grandparent, but it can also happen with other family members and stepparents, as well. The family member who is being shut out of the child’s life can file a petition with the court seeking a court order that allows the family member to have visitation.
In Virginia, any “person with a legitimate interest” may petition the court for visitation with a child. Persons with a legitimate interest include, but are not limited to, grandparents, blood relatives, stepparents, former stepparents, and other family members. For this brief discussion, we will talk about grandparents seeking visitation. The legal standard that a grandparent will need to meet in a visitation case depends upon whether both of the child’s parents are united in their objection to the grandparent visitation, or whether one parent is in favor of the visitation.
A grandparent seeking visitation over the united objection of both parents must demonstrate by clear and convincing evidence that the child will suffer “actual harm” if the child does not have visitation with the grandparents. This is a high hurdle to get over. This means that the court must find an actual harm to the child’s health or welfare if visitation does not occur. If a court finds that actual harm to the child will result if there is no visitation, then the court will consider the best interests of the child factors to determine whether the grandparent should be awarded visitation.
In contrast, when only one parent objects to the grandparent having visitation with the child, the grandparent is not required to present evidence that the child would suffer actual harm without the visitation. In these cases, the court will determine whether there is sufficient evidence that visitation with the grandparent is in the child’s best interests and if it is determined that visitation is in the child’s best interest, the grandparents will get a court order for visitation with the child. Grandparents are often successful in being granted court ordered visitation under the best interest of the child legal standard.