Grandparent and Non-Parent Custody and Visitation in Virginia
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Grandparents and other relatives can file for custody or visitation in Virginia in some situations. The filing process is the same as for parents, but what you need to prove is harder.
This article explains who can file, what you need to show, and what to realistically expect.
Who can file?
To file for custody or visitation as a non-parent, you must be someone the law calls “a person with a legitimate interest.” This includes grandparents, step-grandparents, stepparents, former stepparents, blood relatives, and other family members. You do not need to be a relative as long as you have a strong relationship with the child.
It does not matter if you are the grandparent or an aunt or cousin. All non-parents are judged the same.
There is one important limit: You are not eligible if your connection to the child runs through a parent whose parental rights have already been “terminated” by a court, and the child was adopted. For example, if your own child's parental rights to their child were terminated and the child was later adopted by someone else, you cannot get custody or visitation of that grandchild.
Where and how to file
All non-parent custody and visitation cases start in the JDR Court.
Go to the Court Services Unit
To file for custody or visitation, you go in person to the Court Services Unit (CSU) of the Juvenile and Domestic Relations Court, called the JDR Court. The CSU may not be in the same building as the courthouse. Make sure you go to the CSU that serves your city or county's JDR Court.
You will need to file in the JDR Court of the city or county where your child lives. In most cases, the right court is either:
- The city or county where your child currently lives, or
- The city or county where your child lived in the last six months, if a parent still lives there.
Find your local Court Services Unit. If you are not sure, call the Clerk’s office and ask. You can find the phone number for your court on the VA Courts website.
Some courts require an appointment. Call ahead before you go.
Tell them what you are asking for
Tell the staff you want to file for custody, visitation, or both.
Be ready to explain:
- Your relationship to the child
- Where the child lives now
- Why you want custody or visitation
- Any concerns about the child's safety or well-being
The staff will also ask you for:
- The child's date of birth, Social Security number, and current address
- The parents' address or last known address
Bring as much information as you can. The staff usually fills out the form for you.
Pay the filing fee or ask for a waiver
Pay the $25 filing fee, or bring a fee waiver form to ask for the fee to be waived. You can use Virginia Law Help’s free online tool to complete the waiver form.
Watch for your court date
After you file, the court will schedule a hearing within a few weeks or months.
Court papers with the hearing date and time will be sent to the addresses you put on the petition. Watch for them.
What if one or both parents object to visitation?
Whether one or both parents object makes a big difference.
- If both parents agree you should not see the child, the court will not order visits unless you can show that keeping you away would hurt the child. This is a very hard thing to show.
- If only one parent objects, while the other is ok with visitation, it may be easier to get visitation. For example, if the grandparent is seeking visitation with a child in the objecting parent’s custody, they will need to show that visits are in the child's best interests. This is easier to prove, but you will still need evidence to show this.
- If there is only one parent in the child’s life (for example, if the other parent is completely absent or has died), and that parent objects, the court will view the situation as if both parents object.
If parents are against you having visitation, it may be more effective to try to repair the relationship with the family than to take them to court.
What you need to prove
Courts assume that children are best raised by their parents. To get non-parent visitation or custody, you need to show two things:
- The child would be harmed if they are not able to visit with you (for visitation cases), or if they stay with their parents (if you are filing for custody)
- It is in the child's best interests to visit (if filing for visitation) or live with you (if filing for custody)
If the child already lives with you, you may only need to prove that it is in the child’s best interests to remain living with you. However, the court may grant visitation to the parent (which may be supervised or unsupervised).
The more specific and concrete your evidence, the better. Simply telling the court that it is your opinion is not enough.
One way to show this is to prove that the parents are unfit. This might mean you have evidence that they are:
- Abusing the child
- Unable or unwilling to provide basic care
- Putting the child in clearly dangerous situations
Something that is only a difference in parenting choices, or something you personally feel is not ideal, does not count as “unfitness.” Being angry that parents will not allow visits doesn’t count either. It also doesn’t count if the child feels sad because they can’t visit with you. Parents have the right to raise their children as they see fit, as long as their choices do not harm the child.
If you do get custody as a non-parent, keep in mind the court can still order visitation with one or both parents (supervised or unsupervised).
Can a parent share custody with a relative?
Yes. A parent can file together with a grandparent or relative to share custody.
This allows the child to live with the relative, if, for example, a parent is in treatment or dealing with a housing crisis, without the parent losing custody entirely. The parent can still share in decisions about the child.
The grandparent might have primary physical custody while the parent keeps the right to be involved in major decisions about the child (joint legal custody). That will make it easier for the parent to regain physical custody when they are back on their feet. This is important for a child’s best interests.
What if the grandparent gets custody, and the parent's situation improves later?
A parent who does not have custody can file for custody again at any time, if their rights have not been ended by a court. However, if that parent previously lost custody, the court does not automatically assume the child is best off with them. The parent will also have to show that there has been a material change in circumstances since the court granted custody to the third party.
Courts also consider how uprooting a child from a stable home might affect them, especially if the child has lived with you for a long time.
If you are keeping a child away from a parent who is now safe, the judge may decide that is not what is best for the child. This could lead to a change in the arrangement. Remember: what is important is what is best for the child, not what is best for you.
Can I get child support if I have custody?
Yes. If you have custody, you can ask for child support from the child's parents. You can do this through the Division of Child Support Enforcement or directly through the court. If you file for support from the state (for example, TANF or food stamps), the state may collect support from the parent.
Read more: How to file for child support
Do I need to call DSS before filing for custody?
No. You do not have to report the child's parents to Child Protective Services or DSS before filing for custody. Being the subject of a CPS report can have serious and long-lasting consequences for the parents. It can make their life and work difficult in the future. Even if the child is removed from the parent’s custody, it is not guaranteed that the child will be placed in your custody. The child may instead be placed with a different relative, or in foster care with strangers.
You can go directly to the Court Services Unit to start the custody or visitation process.
Does a criminal record prevent me from getting custody?
Not necessarily. The judge will look at all the facts in your case, including what type of crime it was and how long ago it happened. You will also have a chance to explain why custody with you is in the child's best interests.
Where can I get free or low-cost help?
- Find your local legal aid office: virginialawhelp.org/get-legal-help or call 866-534-5243.
- Ask a lawyer a question online for free: virginia.freelegalanswers.org.
- Get a low-cost lawyer consultation for $35: vsb.org/Site/legal-help.
Things to remember
- You must be a person with a legitimate interest to file. This includes most close relatives.
- You need solid, strong evidence.
- If both parents object, getting visitation is very difficult. Consider whether repairing the relationship first might be more effective.
- A parent can file for custody again later, unless their rights have been ended by a court.
- You do not need to call Child Protective Services or DSS before filing. You can go directly to the Court Services Unit.