Custody

Non-parents may be able to seek custody of or visitation with a minor child if the judge finds them to be a “person with a legitimate interest.”¹ The law defines a person with a legitimate interest to include, but not be limited to:

• grandparents or step-grandparents;
• current or former stepparents;
• blood relatives;
• other family members; and
• any other person who has a similar relationship with the child, and the court determines that s/he has a legitimate interest in the child.¹

A parent whose parental rights have been terminated cannot be a person with a legitimate interest in the custody or visitation of a child except in certain limited circumstances where:

• the child is at least 14 years old;
• the child’s adoptive parents died or had their rights to the child terminated; and
• the child is in the custody of a local board of social services.¹

A non-parent also cannot be a person with a legitimate interest if their relationship to the child goes through a parent whose rights have been terminated or who has been found to have committed one of the following crimes that resulted in the conception of the child:

1. rape (see subsection A of 18.2-61);
2. carnal knowledge of a child between 13 and 15 years of age (see subsection A of 18.2-63); or
3. incest (see subsection B of 18.2-366).²

Even though a non-parent may be able to apply for custody, the natural parents of the child will be given preference in a custody dispute, as long as they are considered able (“fit”) to take care of the child.³ However, a grandparent may be able to get visitation with a child even if both parents object. For more information see I am the child’s grandparent. Can I get visitation?

¹ Va. Code §§ 20-124.1; 16.1-278.15(B)
² Va. Code § 20-124.1
³ Va. Code § 20-124.2(B)

When making a decision about custody or visitation, the judge must take into account any history of family abuse, sexual abuse, child abuse, or an act of violence, force, or threat that has taken place within the past ten years.¹

However, this does not mean that the parent who committed abuse will automatically be denied custody; it just means that the judge has to consider the abuse in addition to other relevant facts. If the judge does decide to grant visitation to the abuser, you can ask that the visitation be supervised in order to better protect yourself and your child.

There are certain circumstances, however, under which a parent who committed violence can be denied the chance to ask for custody or visitation. You can ask the judge to prohibit the abuser from filing a petition for custody or visitation for up to ten years if the judge finds that:

1. it is in the best interests of the child; and
2. one of the following is true:
   • the abuser was convicted of committing one of the following crimes against his/her child, any child who lived with him/her at the time of the crime, or against the child’s other parent:
     1. murder or attempted murder;
     2. voluntary manslaughter or attempted voluntary manslaughter; or
     3. conspiracy or solicitation to commit any of the above crimes offense; or
   • the abuser was convicted of committing one of the following crimes against his/her child or a child who lived with him/her at the time of the crime:
     1. felony assault that resulted in serious physical injury; or
     2. felony sexual assault.²

¹ Va. Code § 20-124.3(9)
² Va. Code § 20-124.2(E)

As part of your protective order, the judge can award you temporary custody of your child, which would last until the protective order expires.¹ For more information on protective orders, please see VA Protective Orders (for Family Abuse).

¹ Va. Code § 16.1-279.1(A)(10)