Virginia law assumes that it is best for the natural parents to have custody of their children. For anyone else to gain custody, they must overcome this presumption by gathering and presenting ‘clear and convincing evidence’ that a change is in the best interests of the child. A child custody lawyer in Virginia Beach can help you do this.
How Did This Come About?
The precedent for the Virginia presumption favoring natural parents was set in Bailes v. Sours, 231 Va. 96, 340 S.E.2d 824 (1986). In this case, a stepmother was granted custody of a child despite the opposition of the child’s mother. The child’s father had passed away, and the mother was largely unknown to the child because she only visited once each year over a nine-year period.
The child had a strong bond with both the father and stepmother. The court, while finding both women fit to parent, determined that the stepmother had successfully rebutted the presumption in favor of the mother through clear and convincing evidence.
The Supreme Court of Virginia in Bailes identified five circumstances under which the legal presumption favoring natural parents can be challenged:
- Parental unfitness
- Prior order divesting parental custody rights
- Voluntary relinquishment of custody by the parents
- Parental abandonment
- Special facts and circumstances justifying the removal of a child from its natural parent or parents
In the Bailes case, the court concluded that the facts satisfied the fifth factor (special facts and circumstances). The Bailes criteria are applicable for anyone seeking custody in Virginia against a natural parent.
Custody Disputes Involving Third Parties
According to Virginia law, only individuals with a ‘legitimate interest’ can pursue custody and visitation rights. This category encompasses a range of individuals, including grandparents, stepparents, former stepparents, blood relatives, and other family members.
Grandparents or relatives who are actively caring for a child residing in their home might seek custody to streamline processes like school enrollment and healthcare. A parent could also initiate joint custody with a grandparent or relative so the child can live with that relative during periods when the parent is undergoing treatment, facing housing challenges, or dealing with other personal issues that make it difficult for them to care for the child.
Non-parents seeking custody without the consent of the custodial parent bear the responsibility of presenting clear and convincing evidence to justify the removal of custody from a parent. Only after successfully challenging the presumption favoring parental custody through compelling evidence to support at least one of the factors set by the Bailes case do parents and non-parents find themselves on equal footing before the court in a custody dispute.
In this situation, the court is tasked with considering the best interests of the child to make a custody decision. It’s important to note that in these cases, the parent(s) may be obligated to provide child support to the party awarded custody of the child or to the state (if the party caring for the child receives financial assistance from the state to support the child).
Seek Qualified Legal Advice
Getting custody of a child when you’re not the natural parent can be very challenging. If you are concerned about the safety and welfare of a child and the situation meets the criteria set by Virginia law, it’s critical to find a lawyer who will fully investigate the circumstances and fight to have custody transferred to you if there are legitimate grounds for the change.
Want to know if the custodial parent can cancel child support? We’ve got you covered–check out our latest post!