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Legal Information: Virginia

Custody

Updated: 
August 10, 2018

Who can seek custody? Can a grandparent, step-parent, or other relative get custody?

Generally, both parents are entitled to seek sole or joint custody from the court. However, if the parents are unmarried, the father must first establish paternity before seeking legal custody of his child.1

Non-parents who are “persons with a legitimate interest” may also be able to seek custody or visitation of a minor child.2 A person with a legitimate interest includes, but is not limited to:

  • grandparents;
  • step-grandparents;
  • step-parents;
  • former step-parents;
  • blood relatives and 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.3

Note: 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 fit (able) to take care of the child.2

1 Va. Code § 20-49.1
2 Va. Code § 20-124.2(B)
3 Va. Code § 20-124.1

I am the child's grandparent. Can I get visitation?

What you will have to prove in court to get visitation depends on whether both parents object to you having visitation or just one parent objects.

Both parents object
If the natural parents are considered fit and they both do not want you to visit with the child, you will have to show the court that your grandchild’s health and welfare will be actually harmed if you are denied visitation. It is not enough to show that it would hurt YOU if you were denied visitation. You have to show that the child would actually be harmed if the court didn’t let the child visit with you and that visitation is in the child’s best interests.1

One parent objects
However, if only one parent objects to you having visitation and the other parent wants you to visit with the child, you do not have to prove that the child will be actually harmed. You will only have to show that it is in your grandchild’s best interest to visit with you.2

1 Williams v. Williams, 501 S.E.2d 417, 418 (Va. 1998)
2Yopp v. Hodges, 598 S.E.2d 760, 765 (Va. App. 2004)

Can a parent who committed violence get custody?

Maybe. When making a decision about custody or visitation, the judge must take into account any history of family abuse or sexual abuse.1 Family abuse is when your family or household member hurts you using violence, force, or threats that result in bodily injury or place you in reasonable fear of death, sexual assault, or bodily injury.2

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 10 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.3

1 Va. Code § 20-124.3(9)
2 Va. Code § 16.1-228
3 Va. Code § 20-124.2(E)

Can I get temporary custody if I have a protective order against the other parent?

Yes.  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)(8)