Legal Question in Family Law in Virginia
Grandparents have custody - Can mom get it back?
My parents share joint custody of my niece with her mother (my sister). They not only have joint, but physical as well. My niece has physically lived with my parents since she was 2 when her mother voluntarily decided to give my parents rights and physical custody of her. (She is now almost 6). My sister has decided to take my parents to court to regain full custody. If the courts were to choose the best place for my neice to be, as far as better environment, more love and all around better well being, she would undoubtedly stay where she is, with the people that love her so much!! But my fear is that the courts will find in favor of my sister just because she is the mother. She has no relationship with her mother even when they see each other, her mother doesn't show any sort of affection or really any attention, and with us, she is showered with it. There is no doubt, to us, that we can show her to be unfit and that my parents can and have provided the best environment for her. Are there any standing VA custody rights/laws that grandparents have that would give my parents a better chance at keeping my neice? Please Help!!
2 Answers from Attorneys
Re: Grandparents have custody - Can mom get it back?
You mentioned that your sister voluntarily gave custody of the child to your parents. Was that put into a court order? If so it will be difficult for your sister to get the child back because she must show the court that there has been a material change in circumstances and that the child's best interest is to now live with her.
Even if the existing arrangement is not put into a court order your sister will have an uphill battle to regain custody. That isn't to say she wouldn't win, I just mean to say it isn't going to be easy for her. The fact that your parents have been the primary custodian of this child for a number of years speaks volumes, and the court will consider this factor with much weight.
There is case law in Virginia regarding allowing grandparents custody. Typically the natural parents have a presumption in their favor that they should have custody over grandparents but it can be overcome by a showing that the best interest of the child is to live with the grandparents.
Your parents have a strong case based on what you have told me so far in your message. I would suggest, however, that they hire an attorney or at least consult with one now even if your sister never does follow through with filing a petition. If she hasn't filed a petition it may be in your grandparents best interest to file to have the matter finally decided and to receive a court order. I'd have to speak with them to determine whether they should do this.
If you have any questions give me a call at 703-968-3974.
Re: Grandparents have custody - Can mom get it back?
No order of custody is ever "permanent" in the absolute sense.
Upon a showing of a significant and material change of circumstances justifying a change in custody, ANY other person can apply to the court with jurisdiction and venue to switch custody.
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