Jane hugged her two children for what turned out to be the last time. Her husband, John, was distraught and started drinking — again — to handle the stress as her illness progressed. Jane’s parents were in the room, too, and had grown increasingly concerned about what would happen to their grandchildren after she passed away. Before she passed, they whispered in her ear: “Don’t worry, dear. We’ll take care of them.” That pledge began a legal odyssey for the entire family, as the grandparents proceeded to seek legal custody of the children.
While the court generally believes a child’s best interests are served by remaining with his or her biological parents — or that the child should at least be able to visit his or her biological parent — many circumstances may prevent this, such as adoption, divorce, or the removal of a child due to a parent being declared unfit.
Family law attorneys Alan Plevy and Kyung (Kathryn) Dickerson say the Commonwealth of Virginia allows persons with a “legitimate interest” in maintaining a relationship with the minor child the opportunity to petition for custody.
“It is typical in battles over custody for the court to work to keep the child with his or her natural parent,” says Plevy. That tendency was reinforced in 2000, when the U.S. Supreme Court ruled that parents have the ultimate right to custody over their children and grandparents and other guardians do not. This custodial right belongs only to the parents; the rights of other relatives are second to that of the parents in the eyes of the court.
Moreover, petitioning for custody can be complicated, says Dickerson. A petitioner may be granted custody if they can prove:
- The biological parent should not have the legal right to custody
- Granting custody to the non-parent would be in the best interest of the child
Before the court determines whether to award custodial rights to the grandparents, the court will consider the arguments from the current guardians of the child, the biological parents, the party requesting custody, and/or other caretakers of the child.
The court will also take into account the fitness of the biological parent to raise a child. The court will consider the mental stability of the parent, the age and developmental needs of the child, the relationship between the parent and child, any history of abuse within the family, and more.
Family members may argue over who is best suited to raise the child or who should be permitted in the child’s life, but the Judge will ultimately make the decision based on what will be most beneficial to the child — regardless of the wishes of parents and other relatives — taking into account the mandates of the law.
If you have any questions regarding custody rights or any other family law matters, please contact Alan Plevy at abplevy@smolenplevy.com or Kyung (Kathryn) Dickerson at kndickerson@smolenplevy.com.
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