As always, before reading this blog post, please review my disclaimer by following the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Note: Normally Tuesdays are days where I use "classic" blog posts, but since I will be out of town on Thursday, my normal posting day, I am writing a new post today.
Introduction
Unfortunately, sometimes family relationships fall apart. The field of family law wouldn't exist if that weren't the case. While entire tomes can be written about what happens when a marriage falls apart, or a relationship between two people with children, little is discussed - and as a result, little is publicly known - about what happens when a relationship between other family members falls apart. If you and your sister aren't speaking, can she force you to let her spend time with your kids? What about if you and your parents have a falling out over how to discipline your child? What rights do they have? What rights do you have? In today's blog post, I hope to cover some of the issues that come up in terms of custody/visitation rights for non-parent family members of a child.
Virginia Law
Virginia law lays out some very clear rules for custody and visitation - and includes provisions for custody and visitation for non-parents. For some time, Virginia law has stated "As between the parents, there shall be no presumption or inference of law in favor of either. 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." This is found in Virginia Code Section 20-124.2(B). Further, in finding the best interests of the child, the court must consider the factors laid out in Virginia Code Section 20-124.3.
On its face, then, Virginia law would seem fairly liberal with allowing custody and visitation for non-parents. Any party with a "legitimate interest" (defined in Virginia Code Section 20-124.1 as, basically, any adult family member) may get court ordered custody or visitation by proving by "clear and convincing evidence" that such an arrangement is in the child's best interest. So, it would seem that the only difference between a non-parent and a parent is that a parent only needs to meet a "preponderance of the evidence" standard of proof (also known as "more likely than not" or "50% + 1") of the child's best interest, while the non-parent must meet the tougher "clear and convincing evidence" standard - but otherwise the analysis is similar. However, our analysis actually does not stop with the law itself.
Constitutional Law
Since at least the 1920's, the Supreme Court has considered there to be a great deal of constitutional rights involved with parenting. Most importantly, the Supreme Court has recognized a constitutional right for parents to generally make decisions regarding the welfare of their child. In 2000, a US Supreme Court case coming out of Washington applied this principle to visitation by non-parents, stating the parents have the right to decide who their child interacts with, so long as that decision does not harm the child. In other words, that visitation would be in the child's best interest is not enough to overcome the parents' constitutional right to make that decision.
This ruling shook up many state law regimes that allowed for non-parent visitation, including Virginia. While Virginia has never formally amended its law, the law is not applied as written, since it must conform to the US Supreme Court ruling. The result is that Virginia courts have ruled that the "actual harm" standard applies to visitation cases against the unified opposition of parents. So, you might be thinking, what does that mean?
"Actual Harm" Standard
The actual harm standard is exactly what it sounds like. It is on the parties seeking visitation to prove that the child is suffering "actual harm" from not having the visitation. This is a much tougher standard than the "best interest" standard since going against a child's best interests usually merely deprives the child of potential benefits, rather than actually harming the child. Usually a party in such cases must call a medical doctor or psychologist to prove the actual harm, or show a noticeable decrease in grades or other problems since visitation ended. Merely losing out on a relationship with family members is not considered actual harm.
Unified vs. Non-Unified Opposition
An interesting wrinkle in this, however, is that in order for the actual harm standard to apply, both parents must oppose the visitation. If only one parent does, then the parents are not making a joint parenting decision, so the constitutional principles don't apply and the rule reverts to the best interest standard as laid out in Virginia law. The parent not objecting only has to have parental rights - he or she does not have to have any custodial rights at all. In other words, the objecting parent could have both sole legal and physical custody, but as long as the non-objecting parent's parental rights have not been terminated, that parent's non-objection is enough to make the opposition not be unified.
So, What About Custody?
Now, all of the above is about visitation for non-parents - but what about if the non-parent wants to go the full 9 yards and actually get custody of the child? Well, the US Supreme Court case actually only applied to visitation. While the constitutional right of parents to raise their children have long been recognized, there is a competing right of a child to be raised in a good environment. The result is that the "actual harm" standard is not used in custody cases in most states, and until the US Supreme Court gives clarity on the issue, different states use different rules.
In Virginia, custody for a non-parent is judged under a two-prong test. First, there is the portion of the above-quoted section that requires the court to "give due regard to the primacy of the parent-child relationship." This has been interpreted by Virginia Courts to mean that there is a legal presumption that it is in the child's best interest for a parent to have custody, and only if this presumption is overcome can the court then move to the second prong and analyze the best interests of the child under the factors of Section 20-124.3.
Surprisingly, however, there just aren't that many cases in Virginia where this comes up, so the details of these rules are still being fleshed out. For example, the Court of Appeals has left open the possibility several times that the "primacy of the parent-child relationship" requires the "parental presumption" to be rebutted only upon a showing of actual harm to the child (so, applying the "actual harm" standard to custody cases), but it has not actually ruled whether or not this is the case.
The best guidance we have right now, then, comes from a 2009 ruling in the Virginia Supreme Court which laid out five situations in which the parental presumption can be rebutted: (1) parental unfitness; (2) a previous order of divestiture; (3) voluntary relinquishment of custody; (4) abandonment; and (5) special facts and circumstances constituting an "extraordinary reason" to take a child away from his or her parents.
The result is that today most (but not all) trial courts assume that the actual harm standard does apply, and will not grant custody to a non-parent unless one of the five factors above is proven by clear and convincing evidence, and that factor also indicates that there would be actual harm to the child in not overcoming the parental presumption.
Modifying Existing Orders
Now, as most people know, once a custody and visitation order is entered, that's not the end of the story. Modifications are quite common over the course of the child's life, and back when I still practiced custody, I would sometimes have custodial non-parents ask me "gee, am I going to have to prove this stuff every time?" The courts, however, are reasonable about this. Once the parental presumption has been overcome for custody, or the actual harm standard has been met for visitation, it actually becomes the parents' burden to prove in a modification hearing that the parental presumption is no longer overcome or there would no longer be actual harm to the child in denying visitation. The parents can only rarely meet that test once a court has initially made a contrary ruling, since most courts will believe (reasonably) that if a non-parent has had custody or visitation for some time, suddenly taking that away would be harmful. The end result is that most modifications in these cases end up being just about the child's best interests.
Conclusion
Custody and visitation rights for non-parents is one of the more complicated aspects of family law. If you are in a case involving a non-parent seeking custody or visitation (or if you, yourself, are that non-parent), it would be a good idea to have an attorney. If you'd like to discuss your case with an attorney at my office, feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour!
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