There is nothing more sacred or assured in Virginia family law than the right of the natural parents to raise their own children; the courts have declared it to be a constitutional right.  This means that a natural parent will always have physical and legal child custody preference over a third person. The right is not absolute because discretion applies when the natural parent is abusive, neglectful or otherwise a danger to the child’s welfare and well-being.

The natural parent will generally also have a superior custodial right in opposition to a stepfather or even a grandparent.  An exception may occur where the grandparents raised the child and exerted the parental role over the child for an extended time. In that situation, the grandparents may have established a stronger right to custody over the children. Of course, such limitations on the general rule simply fall into the basic issue in all custody cases, i.e., determining what is in the best interest of the child.

Thus, where the children were living with the mother and stepfather, and the mother died, it is the question arises whether the stepfather can continue to exert physical and legal custody in preference over the natural father. That issue recently surfaced in a child custody battle in another state. The question is whether the court will affirm that the father has preferential rights to custody over the stepfather or any other third person. However, the matter appears to be complicated by the two children having expressed a wish to remain with the stepfather.

The mother got legal custody when the couple originally divorced.  After the mother died, the father alleges that the stepfather prevented him from visitation and from any contact with the children. He says that the stepfather even called the police to assist in blocking him from seeing his children. The extent of the father’s visits while the mother was still alive is unknown. His visitation time with them during that period was probably little and far between, which  may explain the children’s estrangement. If so, it must still be decided who created the father’s limited prior role.

The family law judge must now decide whether the stepfather may deny physical and legal child custody rights to the natural father. Without a showing of severe neglect, abuse, or some other dramatic deficiency, it is doubtful that the stepfather will prevail. While the children may have some say in such matters, it is not determinative under these facts. According to the father’s attorney, the stepfather is acting to estrange the children from their father, much as their mother did when she was alive. The desire of the children to stay with the stepfather is something that is unlikely to be a strong factor under these circumstances. It is more likely that the court will instruct them that they must get to know their father again and that the father’s legal rights far exceed what rights the stepfather may have in this scenario.