Grandparents’ rights to legally sue for visitation with minor grandchildren is different in all 50 states. Virginia does not specifically recognize the right of a grandparent to have visitation.
In Virginia, either parent can deny grandparent visitation; they need only express a reasonable justification or basis to deny visitation (e.g., “They talk badly about me in front of the children.”).
If both parents choose to deny grandparent visitation, the burden of proof to the grandparent is to show by clear and convincing evidence that there would be an actual harm to the children if visitation is denied. This is called the actual harm test and is one of the most stringent rules in the country.
Grandparents are considered invested parties to custody disputes in Virginia and therefore have legal standing to sue for custody of their grandchildren.
If the grandparents sue, there is a rebuttable presumption for the parents. They, therefore, must prove:
- The parents are unfit
- The court previously granted an order of divestiture (i.e., prior ruling of parental unfitness)
- Parents voluntarily relinquished custody
- Abandonment has occurred