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Other Than Parents, Who Has Standing to Seek Custody and Visitation Rights in Virginia?

December 12, 2017

In all child custody cases, including those between a parent and a nonparent, the best interests of the child are paramount for the guidance of the court in determining the dispute.  Bailes v. Sours, 231 Va. 96, 99 (1986) (quoting Walker v. Brooks, 203 Va. 417, 421 (1962)).  However, there are situations when non-parents have standing to seek custody and/or visitation of a minor child.  The presumption that a child’s best interests will be served when he is in custody of a parent rather than a nonparent is not conclusive.  Id.  Virginia Code § 20-124.2(B) states that “[t]he 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.”  As defined in Va. Code § 20-124.1, a “person with a legitimate interest” 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.”  Id.  The Court of Appeals of Virginia has addressed this issue in several cases. 

For example, in Thrift v. Baldwin, the Court of Appeals distinguished between a “legal grandparental and sibling relationship” and the “blood relationship” that remains even though legal relationships may be terminated by adoption or termination of parental rights.  23 Va. App. 18, 473 S.E.2d 715 (1996).  Thus, even though the grandparents’ legal status as grandparents was extinguished after the adoption of the children, the Court of Appeals held that the “blood relationship” continued, expressly giving the grandparents standing to seek visitation under Code § 16.1-241(A).  In Switzer v. Smith, the Court of Appeals held that a couple, though unrelated to the minor child by blood, but who cared for the child for two years as a result of the natural parents’ unfitness to do so, had standing to seek custodial rights as a result of the couple’s “cognizable and reasonable interest” in maintaining a close relationship with the child.  2001 Va. App. LEXIS 454 (July 31, 2001).  The Court of Appeals held that all non-parents, whether relatives or not, come before the court equally in custody cases.  Id.  Most recently, in Yokshas v. Bristol City Dep’t of Social Services, the Court of Appeals interpreted the term “legitimate interest” broadly and found that ex-foster parents of a minor child could file a petition seeking custody of the child.  2017 Va. App. LEXIS 286 (2017). 

Although it is typically a difficult scenario when nonparents seek custody or visitation of minor children, the legal system in Virginia provides a strong framework for such cases. 

Naveed Kalantar is a Pender & Coward attorney focusing his practice on family law.  Contact Naveed with questions at or (757) 490-6251. 

Filed Under: Blog Category 1