I have experienced an increasing number of clients involved in third-party custody and visitation disputes pitting parents against non-parents. These third party “non-parents” are often grandparents, aunts, uncles, siblings, distant family members, friends, or other people who meet the definition of “a person with a legitimate interest.” Whether my client is the non-parent attempting to gain custody or visitation, or the parent opposing such relief, it is imperative to understand the legal standards in Virginia in order to properly represent your clients.
Child Custody Between Parents
Most family law attorneys know that custody and visitation disputes between natural parents require application of the “best interest” standard. For initial custody or visitation determinations, the parents stand on equal footing before the court. The court must then decide what arrangement is in the child’s best interest, applying the factors found at Va. Code section 20-124.3. Modification of an existing custody or visitation order between parents requires the court to apply a two-pronged test:
(1) Has there been a material change in circumstances since the most recent custody or visitation order? and if the answer is yes, then
(2) What is the appropriate custody or visitation arrangement, based on the “best interest factors?”
Arguably, custody and visitation disputes between natural parents are some of the most emotionally intense work we do as family law practitioners. We must, therefore, know the applicable standard and prepare our clients accordingly, whatever the factual scenario. The best interest standard has not changed, and likely will not change in the foreseeable future.
How Third-party Custody is Different
Third party custody or visitation actions are an entirely different story. Virginia case law can confound even the most seasoned attorneys (and sometimes, judges as well). While most attorneys know that the legal standard applied in disputes between natural parents is different than the standard applied between a parent and a non-parent, they do not know that the standard applied in third-party custody disputes is different from the standard in third-party visitation disputes. The difference is critical in analyzing these cases and advising clients.
1. Overcoming the “Parental Presumption”: “[I]n a custody dispute between a parent and a non-parent, ‘the law presumes that the child’s best interest will be served when in the custody of its parent.’” Bailes v. Sours, 231 Va. 96, 100, 340 S.E.2d 824, 827 (1986) (quoting Judd v. Van Horn, 195 Va. 988, 996, 81 S.E.2d 432, 436 (1954)). For non-parents seeking custodial rights to be awarded custody, they must first rebut the legal presumption favoring natural parents.
The initial burden is on the nonparent to introduce clear and convincing evidence . . . which constitute[s] an “extraordinary reason” for depriving a natural parent of custody of her or his child. Such evidence . . . must be cogent and convincing.
Once the presumption favoring parental custody has been rebutted, the parental and non-parental parties stand equally before the court, with no presumption in favor of either, and the question is the determination of the best interests of the child according to the preponderance of the evidence.
Brown v. Burch, 30 Va. App. 670, 685-86, 519 S.E.2d 403, 410-11 (1999) (citations omitted, emphasis added).
In Bailes v. Sours, 231 Va. 96, 340 S.E.2d 824 (1986), the Supreme Court of Virginia sets forth the five circumstances under which the legal presumption favoring natural parents may be rebutted. Although the Bailes case was decided before the codification of the parental presumption by virtue of the addition of the “due regard to the primacy of the parent-child relationship” language to Va. Code § 20-124.2 in 1994, it has subsequently been reaffirmed by the Virginia Supreme Court in Florio v. Clark, 277 Va. 566, 674 S.E.2d 845 (2009).
Although the presumption favoring a parent over a non-parent is a strong one, it is rebutted when certain factors are established by clear and convincing evidence. We have held that such factors include: (1) parental unfitness; (2) a previous order of divestiture; (3) voluntary relinquishment; and (4) abandonment.
Finally, we have recognized a fifth factor that rebuts this presumption: a finding of “special facts and circumstances . . . constituting an extraordinary reason for taking a child from its parent, or parents.”
Bailes, 231 Va. at 100, 340 S.E.2d at 827 (citations omitted, emphasis added).
2. Application of the “Best Interest” Factors: After the parental presumption is rebutted, and a third-party is on equal footing with the parents, the court must still consider the best interests of the child in order to make a custody determination.
1. “Actual Harm” Standard: “[B]efore visitation can be ordered over the objection of the child’s parents, a court must find an actual harm to the child’s health or welfare without such visitation. A court reaches consideration of the ‘best interests’ standard in determining visitation only after it finds harm if visitation is not ordered.”
Williams v. Williams, 256 Va. 19, 22, 502 S.E.2d 417, 418 (1998) (quoting Williams v. Williams, 24 Va. App. 778, 784-85, 485 S.E.2d 651, 654 (1997)) (internal citation omitted).
2. In Dotson v. Hylton, 29 Va. App. 635, 513 S.E.2d 901 (1999), the Court of Appeals held that “[w]hen only one parent objects to a grandparent’s visitation and the other parent requests it, the trial court is not required to follow the standard enumerated in Williams.” Id. at 639, 513 S.E.2d at 903 (emphasis added). The factual predicate in Williams was a unified family. The grandparents in Dotson therefore were not required to show actual harm, but only clear and convincing evidence that the best interests of the child would be served by granting them visitation.
3. The trial court in Yopp v. Hodges, 43 Va. App. 427, 598 S.E.2d 760 (2004), applied the standard set forth in Dotson v. Hylton. In Yopp, the maternal grandparents essentially raised the child until he was 5 or 6 years old, but the relationship between the mother and maternal grandparents deteriorated and the mother denied the grandparents’ request for visitation. Because the father, who was not unfit, joined in and expressly supported the maternal grandparents’ request for visitation, the best interests of the child controlled. The guardian ad litem also joined in the recommendation that the maternal grandparents be granted visitation. The trial court determined that granting the grandparents visitation was in the child’s best interests, and the Court of Appeals affirmed.
4. In O’Leary v. Moore, 2003 Va. App. LEXIS 391 (July 8, 2003), the father, the child’s sole surviving parent, who was a fit and loving parent, objected to the maternal grandmother’s petition for visitation. The Court of Appeals affirmed the trial court’s application of the Williams “actual harm” standard. The trial court appropriately rejected the grandmother’s argument that because the mother was deceased, the family was not intact and therefore fell under an exception to Williams. When there is only one living natural parent, the actual harm test applies.
Using the incorrect standard is a common mistake of attorneys involved in third-party custody or visitation. “Actual harm” is NOT the standard in third-party custody cases. Overcoming the parental presumption favoring a parent over a non-parent by proving one of the five circumstances under Bailes v. Sours is NOT the standard for third-party visitation cases. For custody, a third-party must show by clear and convincing evidence one of the five enumerated circumstances: (1) parental unfitness, (2) a previous order of divestiture, (3) voluntary relinquishment, (4) abandonment, or (5) special facts and circumstances. For visitation, the third-party must prove by clear and convincing evidence that there would be actual harm to the child if visitation is denied, which will often require expert witness testimony. If the third-party seeking custody or visitation overcomes the appropriate initial hurdle, then the court must still consider whether it is in the child’s best interests to grant the third-party custody or visitation. However, if one parent consents to visitation with a grandparent or other third-party, the burden is lowered and the grandparent must only demonstrate by clear and convincing evidence that the best interests of the child will be served by an award of visitation.
The most seasoned family law practitioners may confuse the various standards. Even the Virginia Court of Appeals has confused these standards on a few occasions. In South v. South, an unpublished 2005 third-party custody case, the Court explicitly stated that for the grandparents in that case to be awarded custody of their grandchild they had the burden of proving “actual harm” to the child if placed in the custody of the mother. In Micus v. Mitchell, an unpublished 2006 third-party custody case, the Court affirmed the trial judge’s use of the actual harm standard in a third-party custody case. South and Micus are aberrations. They are not the law of the Commonwealth. Clarity in the two standards was subsequently expressed in the 2010 unpublished case of Barbour v. Graves, where the Virginia Court of Appeals stated in a footnote: “This ‘actual harm’ test in a visitation context under Code §20-124.2(B) has not been specifically addressed by a Virginia appellate court in a custody dispute. However, when the Virginia Supreme Court recently addressed the parental presumption in Florio, in the context of a parent/non-parent dispute over custody of a minor child, the Court reaffirmed the principles established earlier in Bailes without application of the actual harm standard . . . .” Significantly, the Court of Appeals in Barbour simply ignored its previous decisions in South and Micus, which have no precedential value and should not be relied upon by practitioners. This also underscores the importance of citing relevant precedent, as South, Micus and Barbour are all unpublished opinions, none of which have been cited in subsequent opinions. There is a vast body of published case law on third-party custody and visitation disputes that may be drawn from to support your client’s position in any such case.
 The following are a few cases to review when considering how to prove or defend against each factor:
Parental unfitness - Walker v. Fagg, 11 Va. App. 581, 400 S.E.2d 208 (1991).
Order of divestitiure - Ferris v. Underwood, 3 Va. App. 25, 328 S.E.2d 18 (1986); Albert v. Ramirez, 45 Va. App. 799, 613 S.E.2d 865 (2005).
Relinquishment - Shortridge v. Deel, 224 Va. 589, 299 S.E.2d 500 (1983).
Abandonment - Patrick v. Byerley, 228 Va. 691, 325 S.E.2d 99 (1985).
Special facts and circumstances - Florio v. Clark, 277 Va. 566, 571, 674 S.E.2d 845, 847 (2009); Mason v. Moon, 9 Va. App. 217, 385 S.E.2d 242 (1989).