Grandparents, Divorce, and the Broken Family Tree

November 2, 2022
Chris Macturk
Founding Attorney

Child custody disputes between divorcing spouses are, unfortunately, something many people have at least heard about. From neighbors, family, and co-workers, you may have heard some of their “stories” about the mother who “did this” or the father who “did that.” You may have jumped right into the conversation and dished your own gossip about the couple, or you may have steered clear and stayed out of it completely. Worse yet, you may have memories of your own child custody dispute.


So, we can understand the child's parents are involved in these cases, but what about grandparents?


Well, sometimes grandparents must wage their own legal battle when their children – the child’s parent and their spouse (or ex-spouse) – don’t allow their child to have contact with grandparents.


Grandparent's Rights During a Divorce

Virginia law gives grandparents the right to petition a court to see their grandchildren when parents keep them away. “Persons of legitimate interest” may petition the Courts for custody of a minor child. Grandparents fall under the definition of “persons with legitimate interests.”


Virgina Law, Richmond VA

But are parents and grandparents equal in the eyes of the law?




Virginia Code Section 20-124.2 states,

“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 means the “parent-child” relationship gets primary consideration over other relationships the child may have.


Further, grandparents have a “higher burden” than do parents. You see, in a child custody dispute between parents, the parent who succeeds only has to show “it is more likely than not” that giving him or her custody is in the best interest of the child. This “standard of proof” is called “preponderance of the evidence,” and you can think of it as getting just over the 50-yard line on a football field. You don’t have to get all the way to the end zone – you just have to get a little past halfway.


Grandparent's Rights to Visitation and Child Custody

But if you are the grandparent, you must show “clear and convincing” evidence that it’s in the child’s best interest to award you custody or visitation with your grandchild. This is a higher burden – a steeper, longer, harder road to travel to be successful in court. Using my football field example above, you may ask, how much further down the field do grandparents have to go? I can’t say it’s another 10 or 20 yards. Just understand it’s “more.”


Perhaps a comparison will help.


“Preponderance of the evidence” is the lowest burden in the law. The “highest burden” in the law is “beyond a reasonable doubt” used in criminal cases. That means if a jury has “just one reasonable doubt” about the person’s guilt or innocence, the jury should return a “not guilty” verdict. So, “clear and convincing” falls somewhere between preponderance of the evidence and beyond a reasonable doubt.


So, how does divorce play into all of this?


Divorce can create two camps, each revolving around a respective spouse. Friends and family members may take sides and this taking sides may spoil relationships throughout the extended family. Falling out with a former in-law may impact when that former in-law – a child’s grandparent – can see a grandchild. Generally, when one parent no longer gets along with their ex-spouse’s parents, this means that the grandparent sees the child on the other parent’s “time.” For example, if you no longer get along with your former daughter-in-law, you would see your grandson when your son has him and not when your former daughter-in-law has him.


grandparent visitation, grandparent visitation rights

But sometimes, both parents object to grandparents being in their child’s life – divorced or not. If this is the case, grandparents can still petition a Virginia court for help, but now their path is much, much more difficult. You see, while we normally talk about the “best interests” of a child when both biological parents object to a grandparent seeing the child, a court can still give that grandparent custody or visitation, but only after the grandparent proves “actual harm” will happen to the child if the grandparent is not granted custody or visitation. This is often very difficult to prove. The law makes this difficult because fit parents have a Constitutional right to parent their children how they choose. Before a Court can allow someone other than a parent to interfere in that right, a showing of “actual harm” needs to be made.


A couple of enterprising grandparents went so far as to lobby the Virginia General Assembly to help them in their efforts to see their grandchild. In their case, their son, the biological father, died, and the biological mother denied contact between her son and his paternal grandparents. According to Virginia Lawyers Weekly, the child’s grandmother “had successfully lobbied in support of the bill, including meeting with individual lawmakers. The law allows a grandparent to bypass the “actual harm” requirement by introducing evidence that the grandchild’s deceased or incapacitated parent, who is related to the grandparent, consented to the visitation. If the grandparent can prove by a preponderance of the evidence such parent’s consent, the court may consider whether grandparent visitation is in the best interest of the child.” (See Virginia Code Section 20-124.1(B.2)).


My son recently graduated from high school. Family members and friends gathered at his graduation party to celebrate his accomplishment. My son’s three living grandparents were all in attendance. We are thankful that all three could attend, that they are each in relatively good health, and they could enjoy the fellowship. Graduation is a big deal! My wife and I couldn’t imagine not including our parents at such an important event.


But as I’ve seen over and over through my years as a divorce lawyer, not all families are the same, and divorce can significantly alter not only relationships between spouses but also impact relationships throughout the entire family tree.


Chris Macturk - family law attorney Richmond VA

Are you concerned about visitation as a grandparent or have questions about custody rights?

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