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  1. #1
    Join Date
    Sep 2012
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    1

    Default When Can a Grandparent Seek Visitation

    My question involves a child custody case from the State of: PA

    So, I am no longer speaking to my mother. Her and my fiance's mother decided to call CPS on him stating that my fiance was physically abusing my two boys. Which I might add, was not founded to be true. Now, because of that, we let them both know that they are no longer aloowed to have any contact with our family at all. My mother has sent me an email saying that she will get a lawyer and take me to court to gain visitation to my boys. She thinks she will do this because she lived with us for a little over 12 months. Now, my question is, will she will based on that, if she persues this matter?? She did live with my children for 12 months, however she was only living with us because she had no place to go and needed a place to live. So, she was living with US. Does that still fit into the part of law that say if they lived together for 12 months?? Please help! I need to know my rights as a parent to keep her away.

  2. #2
    Join Date
    Sep 2005
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    Behind a Desk
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    74,835

    Default Re: When Can a Grandparent Seek Visitation

    Should we infer that your fiancé is not the father of your children? If so, what position is the father taking on this dispute?
    Quote Quoting Virginia Statutes, Sec. 20-142.1 - Definitions
    "Person with a legitimate interest" shall be broadly construed and includes, but is not limited to grandparents, stepparents, former stepparents, blood relatives and family members provided any such party has intervened in the suit or is otherwise properly before the court. The term shall be broadly construed to accommodate the best interest of the child. A party with a legitimate interest shall not include any person

    (i) whose parental rights have been terminated by court order, either voluntarily or involuntarily,

    (ii) whose interest in the child derives from or through a person whose parental rights have been terminated, either voluntarily or involuntarily, including but not limited to grandparents, stepparents, former stepparents, blood relatives and family members, if the child subsequently has been legally adopted, except where a final order of adoption is entered pursuant to § 63.2-1241, or

    (iii) who has been convicted of a violation of subsection A of § 18.2-61, § 18.2-63, subsection B of § 18.2-366, or an equivalent offense of another state, the United States, or any foreign jurisdiction, when the child who is the subject of the petition was conceived as a result of such violation.
    Quote Quoting VirginiaCode § 20-124.2(B)
    B. In determining custody, the court shall give primary consideration to the best interests of the child. The court shall assure minor children of frequent and continuing contact with both parents, when appropriate, and encourage parents to share in the responsibilities of rearing their children. As between the parents, there shall be no presumption or inference of law in favor of either. The court shall give due regard to the primacy of the parent-child relationship but may upon a showing by clear and convincing evidence that the best interest of the child would be served thereby award custody or visitation to any other person with a legitimate interest. The court may award joint custody or sole custody.
    Virginia has two standards of proof for grandparents' visitation actions, a stronger burden that applies when both parents object to visitation ("[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"), and a weaker standard that applies when only one parent objects. Thus, it's important to know what the children's father believes should happen:
    Quote Quoting Yopp v Hodges, 43 Va. App. 427; 598 S.E.2d 760 (2004)
    Code § 20-124.2(B) provides that the "court shall give due regard to the primacy of the parent-child relationship but may upon a showing by clear and convincing evidence that the best interest of the child would be served thereby award custody or visitation to any other person with a legitimate interest." Persons with a legitimate interest include a minor child's grandparents. See Code § 20-124.1. The party seeking visitation bears the burden of proving it is in the best interests of the child. See Code § 20-124.2(B); Dotson v. Hylton, 29 Va. App. 635, 640, 513 S.E. 2d 901, 903 (1999). The term "clear and convincing evidence" has been defined as "that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as is required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal." Fred C. Walker Agency, Inc. v. Lucas, 215 Va. 535, 540-41, 211 S.E. 2d 88, 92 (1975) (quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118, 123 (Ohio 1954)).

    In Williams, this Court considered an appeal from a trial court's order granting visitation with a minor child to paternal grandparents. Williams, 24 Va. App. at 780, 485 S.E. 2d at 652.

    The trial court granted the grandparents' petition for visitation over the objections of both mother and father. Id. We reversed the trial court's decision, holding that "the parents' right to autonomy in child rearing is a fundamental right protected by the Fourteenth Amendment of the United States Constitution and that state interference with that right must be justified by a compelling state interest." Id. In support of the primacy of the parent-child relationship and in furtherance of the principle that parents have a constitutional right to autonomy in child rearing, this Court determined that the third party seeking visitation over the objections of both parents must show more than that the requested visitation would be in the child's best interests. "[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." Id. at 784-85, 485 S.E. 2d at 654 (emphasis added).

    We subsequently distinguished the holding in Williams in a case involving only one parent's objection to grandparent visitations. In Dotson, we affirmed the trial court's award of visitation to the paternal grandmother. Although father was incarcerated, he requested that the paternal grandmother be allowed to visit with his child. Dotson, 29 Va. App. at 638, 513 S.E. 2d at 902. The trial court granted the request over mother's objection, finding that such visitation was in the best interests of the child. Id. at 638, 513 S.E. 2d at 903. We rejected mother's argument that the trial court erroneously failed to apply the Williams standard, holding 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; see also Griffin v. Griffin, 41 Va. App. 77, 83-84, 581 S.E. 2d 899, 902 (2003).

  3. #3
    Join Date
    Feb 2011
    Location
    Virginia
    Posts
    587

    Default Re: When Can a Grandparent Seek Visitation

    I think it's also important how long ago grandma lived with you, and how often she sees the children now.

    I've been through the grandparent thing in VA. They will probably try to get you to mediate somehow. Do not agree to anything! Even if a judge orders visitation in JDR court (an attorney may tell you how likely that would be with the judge you get) - because some judges do in fact seem to play by their own rules so to speak and have wide interpretations of what they can do - this is not likely something that would hold up under an appeal. It's the one custody/visitation scenario that I think is often worth appealing.

    Of course, I don't know all of the details of your case, but on the surface it doesn't seem like she would get anywhere if you don't let it. But again, you should not mediate an agreement that is signed into an order! If you do, it will be very difficult to remove that in the future.

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