As always, before reading this post, please review my disclaimer by clicking on the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
One of the most useful things for me as a writer of this blog is getting questions from readers e-mailed to me asking me to elaborate on something I've had in the blog. It helps me know what people are interested in learning more about, and where some more detail could be helpful to people. Originally I tried to address this in follow up blog posts, but eventually I decided that it would be easier for me to consolidate these questions every now and then into what I've called "Law and the Blog" articles where I directly address some common questions I've received. This is the fourth iteration of that series - the last having been done in March.
"You mentioned in a previous post that if a child is permanently disabled, then after they become an adult, you can still be ordered to pay child support. I'm in that situation, except my ex just moved my son into an assisted living facility. I can't afford to help pay my son's assisted living costs and pay child support to my wife, so I'm stuck not helping my son - what can I do?"
If you're in this situation, you need to file to terminate your support obligation immediately. Post-majority child support for a disabled adult child is only authorized by statute if that child resides with the parent receiving the support. If the child is no longer residing with that parent (because, for example, the child has been moved into assisted living), then your support obligation should be terminated, and you should be able to contribute to your son's care directly.
"My ex has been refusing my court-ordered visitation with my daughter for no good reason - should I file a Motion to Modify Custody or for a Rule to Show Cause?"
Well, that's up to you - and to be clear, you are perfectly allowed to file both. For a Rule to Show Cause I would ask if the violations are repeating and significant. If they are, then it's probably worth pursuing, as your ex may well violate more court orders, and a contempt finding with a threat of jail time might be just what the doctor ordered for getting her to comply with court orders. As for the custody modification, you need to analyze whether or not changing custody would actually benefit your child. If your ex is going to ignore even a contempt finding, and will just never let you see your daughter, then it may well be that you taking custody is what's best for your daughter. If, however, you can get your ex to comply with the current order, you should consider why you want custody (is it because you actually want it, or just to punish your ex), why you don't currently have custody, and if yanking your daughter out of the home she's used to is really in her best interest.
I will say that when I practiced custody/visitation more regularly, I usually filed a Rule to Show Cause and only a Rule to Show Cause in these cases - but there were certainly more extreme cases in which I did pursue a custody modification.
"Why did the whole Kim Davis thing bother you so much?"
When I was in college, I met an international student from Central Asia and got to talking about why he wanted to come and learn in America. He told me about how in his country, they did not have a free press, but it was free enough that they got fairly unfiltered world news (it was domestic stories that were more suppressed). He remembered watching the fallout of the 2000 election in America, and was sad to see such a great nation fall into such turmoil. After the court ruled against Al Gore, he waited to hear about the ensuing civil unrest and breakdown of order. And waited. And then he learned that, rather than lead a revolution, Gore had simply conceded, Americans, including Gore's hardest core supporters, moved on with their lives, and that was that. To him, the notion that a court could issue an order (a 5-4 decision at that), and the nation would say "ok" and that be the end of it was completely novel to him, and he immediately fell in love with the idea of America.
You want to know what makes America truly exceptional? The rule of law. We are one of the few countries in the world where the rule of law is taken seriously, and reigns supreme over virtually everything else. It's why we don't have routine civil unrest, civil wars, revolutions, etc. We have the rule of law. When I hear people openly mocking and attacking the rule of law, as Kim Davis and her supporters did, I hear people trying to undo the very fabric of this country. These are people who want to make America no longer be America. That is why Kim Davis bothered me so much.
"You've explained before how there are certain circumstances in which a relative of a child other than the parents, such as the grandparents, can get court-ordered visitation, and that it is a much easier standard when one parent agrees with the visitation and the other doesn't than when both parents disagree with the visitation. You've also explained how, when a child is adopted by a step-parent, the biological parent's rights are terminated, but that parent's relatives' rights are not, so a grandparent could still seek visitation. If my son's son is adopted by his step-father and I seek visitation, does it matter that my son supports that visitation, or would I need either the mother or step-father (or both) to support the visitation in order to get the less strict standard applied?"
I'm sorry to say that while your rights as the child's grandmother are not terminated in a step-parent adoption, your son's rights as the child's father are if the child is adopted by his step-father. This includes your son's right to consent to your effort to seek court-ordered visitation. As a result, if the adoption goes through, you will need either the mother or the step-father (now adopted father) to approve in order to get the "best interests of the child" standard applied - otherwise you will face the much tougher "actual harm to the child" standard regardless of what your son's position is.
Conclusion
As always, keep those questions coming. I love knowing what it is that people need to know the most. If you need legal assistance, please give us a call at (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com. We offer free initial consultations for up to half an hour! Also, don't forget to check out our new and improved website at http://www.thebaldwinlawfirm.com.
Showing posts with label Granparent. Show all posts
Showing posts with label Granparent. Show all posts
Friday, November 20, 2015
Friday, August 14, 2015
Virginia Termination of Parental Rights - An Overview
As always, before reading this post, please review my disclaimer by clicking on the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
One of the unfortunate realities of life is that not every parent is truly fit to be a parent. When a parent is unfit, sometimes it is necessary for their rights as a parent to be taken away. In Virginia, there are three basic ways (although each of these categories has a wide range of sub-categories) a parent's rights can be terminated - through a voluntary termination proceeding, through an involuntary termination proceeding, or through an adoption.
While each of these categories probably deserve blog posts of their own (in fact, a number of their sub-categories deserve blog posts of their own) which I hope to write in the future, today I'm just going to provide a basic overview of the three procedures - what they mean, how they get started, and what their implications are.
What Happens When Your Parental Rights are Terminated?
So, before beginning, it's important to know what it means for your "parental rights" to be terminated. This doesn't just mean you don't get to see the child anymore. Remember how, for example, custody and visitation is modifiable? Well, if your parental rights are terminated, that's permanent (with a couple very rare exceptions I won't get into here), so you can never seek an order allowing you to see your child again. You also lose any inheritance rights you may have had involving the child, any rights to have any say in how the child is raised, etc. Basically, as far as the law is concerned, you are no longer that child's parent.
Now, along with your rights being terminated, your responsibilities are as well. The care of the child is no longer your responsibility, and if you were not the custodial parent, your child support obligation ends as well. I'm sorry to say I've encountered far too many cases with someone will to just sign away their parental rights and any hope of a relationship with their own child just so that they won't have to pay child support.
So, in short, a termination of parental rights means the law no longer considers you that child's parent. You have no rights related to that child or responsibilities. One caveat - if you committed a parental crime before your rights were terminated (abuse or neglect being the main ones) you can still be charged and convicted since this was before your responsibilities had been terminated.
Voluntary Termination of Parental Rights
So, as noted above, I've seen people "sign away their rights" just to get out of child support. How does that happen? Well, there are two ways. I'll get to the most common way at the end of this section, but a less common but potentially robust way comes from the Virginia Code. Virginia Code Section 16.1-277.02 creates a cause of action called a "Petition for Relief of Care and Custody." In this instance, the parent wishing to give up his or her parental rights must file a petition with the J&DR Court stating that the petitioner wishes to give up his or her parental rights and laying out the reasons for that desire. Notice must be given to the child (if the child is 12 years old or older), a guardian ad litem appointed for the child, the local Department of Social Services, and all other parents or guardians of the child. The local Department of Social Services is required to investigate the matter.
Involuntary Termination of Parental Rights
An involuntary termination of parental rights can occur when the local Department of Social Services concludes your child is in need of their services and should be removed from your home. This is primarily due to abuse and neglect issues, but can also arise from other matters showing that you are an unfit parent. While it is possible in certain circumstances for only one parent's rights to be terminated this way, usually both parents' rights are, and the child is placed in foster care with a goal of adoption. Moreover, it is important to note that one parent cannot petition to terminate the rights of the other parent.
There are many ways and reasons the parental rights are involuntarily terminated, so I will not get into those matters too far here, but a very large percentage of parental right terminations occur in the involuntary termination process.
Adoption
Adoption, both contested and uncontested, also results in the termination of parental rights of biological parents. There are many kinds of adoptions, so I won't go into all of them here, but in most forms of adoption, legal custody has to be granted to the adoptive parents in the J&DR Court before they can begin the adoption process in the Circuit Court. For basically all adoptions except agency adoptions and step-parent adoptions, the termination of the biological parents' parental rights occurs in the J&DR Court as part of the same Order that grants the adoptive parents custody of the child.
In agency adoptions, the biological parents' parental rights are terminated when the child is placed in the custody of the agency. In step-parent adoptions, the parental rights of the biological parent that the step-parent is "replacing" are terminated as part of the Final Order of Adoption in the Circuit Court.
There's an important note about adoptions, however. Unlike other forms of termination of parental rights, adoptions affect more people than just the biological parents. Specifically, all people (including grandparents, uncles, aunts, nieces, nephews, etc.) that had a biological relationship with the child through a person whose parental rights have been terminated as part of an adoption also lose their residual rights with regard to that child (we just had a recent case in the Court of Appeals here affirming that the biological grandparents of two children automatically lost their previously ordered visitation rights with their biological grandparents when the children's foster parents adopted them). There is an exception, however - in step-parent adoptions it is only the parent who loses his or her rights, all of that parent's relatives still retain them. This exception, however, only applies in the case of a step-parent adoption, not any other form of adoption.
Conclusion
Termination of parental rights is one of the most complicated and emotional situations we face in family law in Virginia. The procedures can be daunting to someone unfamiliar with the system, and this is a situation where you should virtually always have an attorney. If you are involved in parental termination proceedings (voluntary or involuntary) or an adoption and you would like to consult with a lawyer, feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com. Our consults are free for up to half an hour!
Introduction
One of the unfortunate realities of life is that not every parent is truly fit to be a parent. When a parent is unfit, sometimes it is necessary for their rights as a parent to be taken away. In Virginia, there are three basic ways (although each of these categories has a wide range of sub-categories) a parent's rights can be terminated - through a voluntary termination proceeding, through an involuntary termination proceeding, or through an adoption.
While each of these categories probably deserve blog posts of their own (in fact, a number of their sub-categories deserve blog posts of their own) which I hope to write in the future, today I'm just going to provide a basic overview of the three procedures - what they mean, how they get started, and what their implications are.
What Happens When Your Parental Rights are Terminated?
So, before beginning, it's important to know what it means for your "parental rights" to be terminated. This doesn't just mean you don't get to see the child anymore. Remember how, for example, custody and visitation is modifiable? Well, if your parental rights are terminated, that's permanent (with a couple very rare exceptions I won't get into here), so you can never seek an order allowing you to see your child again. You also lose any inheritance rights you may have had involving the child, any rights to have any say in how the child is raised, etc. Basically, as far as the law is concerned, you are no longer that child's parent.
Now, along with your rights being terminated, your responsibilities are as well. The care of the child is no longer your responsibility, and if you were not the custodial parent, your child support obligation ends as well. I'm sorry to say I've encountered far too many cases with someone will to just sign away their parental rights and any hope of a relationship with their own child just so that they won't have to pay child support.
So, in short, a termination of parental rights means the law no longer considers you that child's parent. You have no rights related to that child or responsibilities. One caveat - if you committed a parental crime before your rights were terminated (abuse or neglect being the main ones) you can still be charged and convicted since this was before your responsibilities had been terminated.
Voluntary Termination of Parental Rights
So, as noted above, I've seen people "sign away their rights" just to get out of child support. How does that happen? Well, there are two ways. I'll get to the most common way at the end of this section, but a less common but potentially robust way comes from the Virginia Code. Virginia Code Section 16.1-277.02 creates a cause of action called a "Petition for Relief of Care and Custody." In this instance, the parent wishing to give up his or her parental rights must file a petition with the J&DR Court stating that the petitioner wishes to give up his or her parental rights and laying out the reasons for that desire. Notice must be given to the child (if the child is 12 years old or older), a guardian ad litem appointed for the child, the local Department of Social Services, and all other parents or guardians of the child. The local Department of Social Services is required to investigate the matter.
At the hearing on the matter, the petitioner, the child (through his or her guardian ad litem), the other parents and guardians and the Department of Social Services all have the right to put on evidence. After hearing all of the evidence, the court must determine whether it has been proven by "clear and convincing evidence" (so, more than a preponderance of evidence, but not as strict as beyond a reasonable doubt) that termination of the parental rights is in the child's best interest. In other words, "I don't want to pay child support" isn't a good enough legal reason to terminate your parental rights, even if that is your motivation. It is also very likely that at least one of the above parties will oppose your efforts (for example, the other parent may not be ok with you never paying child support again).
It is worth noting that many courts have read this code section to require the petitioning parent to actually have custody of the child, and thus dismisses petitions filed by a non-custodial parent. This is not settled law yet. As a result, most "voluntary" terminations of parental rights actually occur in cases where an involuntary termination petition is filed, but the parent consents to the termination.
Involuntary Termination of Parental Rights
An involuntary termination of parental rights can occur when the local Department of Social Services concludes your child is in need of their services and should be removed from your home. This is primarily due to abuse and neglect issues, but can also arise from other matters showing that you are an unfit parent. While it is possible in certain circumstances for only one parent's rights to be terminated this way, usually both parents' rights are, and the child is placed in foster care with a goal of adoption. Moreover, it is important to note that one parent cannot petition to terminate the rights of the other parent.
There are many ways and reasons the parental rights are involuntarily terminated, so I will not get into those matters too far here, but a very large percentage of parental right terminations occur in the involuntary termination process.
Adoption
Adoption, both contested and uncontested, also results in the termination of parental rights of biological parents. There are many kinds of adoptions, so I won't go into all of them here, but in most forms of adoption, legal custody has to be granted to the adoptive parents in the J&DR Court before they can begin the adoption process in the Circuit Court. For basically all adoptions except agency adoptions and step-parent adoptions, the termination of the biological parents' parental rights occurs in the J&DR Court as part of the same Order that grants the adoptive parents custody of the child.
In agency adoptions, the biological parents' parental rights are terminated when the child is placed in the custody of the agency. In step-parent adoptions, the parental rights of the biological parent that the step-parent is "replacing" are terminated as part of the Final Order of Adoption in the Circuit Court.
There's an important note about adoptions, however. Unlike other forms of termination of parental rights, adoptions affect more people than just the biological parents. Specifically, all people (including grandparents, uncles, aunts, nieces, nephews, etc.) that had a biological relationship with the child through a person whose parental rights have been terminated as part of an adoption also lose their residual rights with regard to that child (we just had a recent case in the Court of Appeals here affirming that the biological grandparents of two children automatically lost their previously ordered visitation rights with their biological grandparents when the children's foster parents adopted them). There is an exception, however - in step-parent adoptions it is only the parent who loses his or her rights, all of that parent's relatives still retain them. This exception, however, only applies in the case of a step-parent adoption, not any other form of adoption.
Conclusion
Termination of parental rights is one of the most complicated and emotional situations we face in family law in Virginia. The procedures can be daunting to someone unfamiliar with the system, and this is a situation where you should virtually always have an attorney. If you are involved in parental termination proceedings (voluntary or involuntary) or an adoption and you would like to consult with a lawyer, feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com. Our consults are free for up to half an hour!
Tuesday, September 23, 2014
Virginia Grandparents' Rights: Custody and Visitation for Non-Parents
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!
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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