Sometimes we’re not even sure whether we are proudly strutting our Latin or simply flashing back to Mrs. McPamashamspam’s high school geometry class, but the phrase “quod erat demonstrandum” has been floating around in our heads for days now. This is probably because some legal concepts require a sort of orderly proof, a multi-step system, to explain. One example of this is grandparents’ rights in child custody issues. Before we leap to our Q.E.D., we have to set out a few preliminaries.
Axiom #1: Grandparents Exist
We begin by agreeing on a few axioms (ideas that are self-evidently true), such as the existence of grandparents and grandchildren.
If you are shaky on this, you have much larger problems than mere child custody concerns and we would direct you to one of those helpful pamphlets your parents should have left for you on your pillow (the same parents, unsurprisingly, who are your children’s grandparents).
Anyway, when you and your ex-wife sorted out your divorce, your parents and her parents did not stop being grandparents to your children. The Commonwealth of Virginia honors grandparents, emotionally of course but also legally, by recognizing grandparents as one of a class of persons with “a legitimate interest” in what is best for the child. The partial list in Title 20, Chapter 6.1, § 20-124.1 includes grandparents, step-grandparents, stepparents, former stepparents, blood relatives and family members.
Axiom #2: Grandparents Can Get Custody
As with so many family law matters, we have spoken before of grandparents’ legal rights in these pages. Though this may come as a shock, grandparents have no legal right to do any of these things for their grandchildren:
- Spoil their dinners with ice cream
- Buy them expensive toys
- Take them to Water Country USA
- Pinch their cheeks and say, “Gimme some sugar”
- Say yes when the parents say no
Grandparents do have legal rights if the grandparents present themselves in court and petition the court for recognition:
- Child custody — This can be sole physical custody, legal custody, or joint custody
- “Parenting” time — Grandparents can get court-awarded time, too
For a grandparent to get custody of a child in a divorce, both parents must first be legally found not to be fit to have sole custody. Importantly, too, if parental rights are terminated by Virginia, the legal connection to the child is severed for both the parent and grandparent.
To get joint custody (or sole custody), the grandparent or grandparents have to present legal evidence that proves (in the legal sense, not the mathematical sense) that the grandparents are better providers for their grandchildren than either parent. That is a very high bar to reach, especially if one parent objects, or both parents object, to such a petition.
Proof: Acting in the Best Interests of Your Grandchildren
Virginia wants proof that grandparents seeking joint custody are doing so in “the best interests of the child,” a concept emblazoned in Code of Virginia like a pair of lemon yellow golf pants on a putting green.
Your heart may be in the right place. You may have a nicer house and more money to offer your grandchildren than either parent. No matter your motivation, if you cannot show you are acting in the best interest of your grandchildren, you will not get joint or sole custody.
Corollary: Joint Custody for Grandparents
A mathematical corollary encapsulates something already proven. Parents outrank grandparents in the rebuttable presumption of who is the best provider. What if, though, a grandparent seeks to join one of the child’s two parents in petitioning for joint custody?
Say you, as the grandparent to dear little Dora, desire to enjoy joint custody with your daughter Donna to the exclusion of your son-in-law, Doug. You and your daughter Donna would have to prove to the court that Doug is not a fit parent for Dora while Donna is.
In such circumstances, your attorney and your daughter Donna’s attorney would work together to prove Doug’s disqualifications for custody.
It is admittedly a very high reach, but if Doug is a substance abuser, incarcerated, or has abandoned Donna and Dora, you stand a good chance of being recognized as a person with legitimate interest.
Your daughter Donna would also have to be willing to admit to the court that she alone could not handle sole custody. That, too, is a big ask, but one she might be willing to entertain if you are providing the kind of financial security for Dora and Donna that Doug did not deliver.
Q.E.D.
Mrs. McPamashamspam would no doubt be proud, not only because we somehow remembered how to spell her name, but because we just Q.E.D.’d the heck out of grandparents’ joint custody rights. We have shown clearly that:
- Grandparents have rights
- Grandparents can be awarded custody of grandchildren
- Grandparents can share custody of grandchildren with either parent
Whether you are a Dad or a Granddad, please call The Firm for Men at 757-383-9184, or contact us online. We can help sort out child custody, child support, child visitation, and other family law issues. We work exclusively for Virginia’s men, and we work tirelessly to defend your rights.
