Legal Question in Family Law in Virginia

Re: Legal time to file for visitation

An interesting question and one for which there is no fixed answer in irginia. This may be the time to make some law.

The Virginia Code allows any person to file a petition for visitation or custody rights. The Circuit Court has taken jurisdiction of the custody issue in the divorce case, so it is clearly before the Court. I know of no reason why you couldn't work yourself into the Divorece case. In my 16 years I have never seen it done. One usually waits until the case is sent back to th Juvenile & Domestic Relations Court. But -- I honestly think - absent some research on the topic - that you can intercede if you like.

My thought is that you can file what's called an Interpleader. You are a third party with a legitimate interest in a legal issue of a case currently before the Court. The Court's favor Interpleading because it saves court resources to try all related cases only once in the interests of judicial economy.

Since it is novel, you will need to consult and use the services of a good attorney.

You asked IF you could not what are the chances of getting anywhere. I will give advice not asked for and hope you might want to know the answer.

Third parties (that is non biological parents - and that includes third party blood relatives) have no rights of their own in this Country. The US Supreme Court says that if both living parents want you shut out - that is their absolute right - we have the Constitutional right to raise our children without government interference and that extends to court ordered visitations against all the parent's wishes. If one parent approves the plan then you have a chance. The standard in Virginia requires that any third party who does not already have court sanctioned rights must be held to the standard of ACTUAL HARM in their proof. That is they would have to prove that the child would suffer actual harm if the visitation were denied. This often requires expert psychiatric opinioon. It is a very high standard to meet.

Usually grandparents are given rights due to the failures of the biological parents. I do not know the facts of your case but I wish you the best of luck.

As always a good attorney is the key to courtroom success.

Good luck.