Awarding Custody to Non-Biological Parents

Custody disputes present between parents present challenges for divorce attorneys and the Virginia courts. The overriding consideration when disputes arise as part of a divorce or as a separate child custody case is to achieve a result that puts the best interest of the child ahead of all else. Introduction of a non-biological parent or third party into the dispute complicates things even further.

Virginia child custody laws have authorized courts to consider parties other than biological parents for quite some time, but it also creates a presumption favoring biological parents that courts in Hampton, Newport News and other communities throughout the Commonwealth must follow.

Step-parents and other non-biological parties benefit by consulting with and retaining the services of family law attorneys with experience successfully handling cases involving custody and non-biological parents.

Time Brings Changes to the Nuclear Family

Old TV shows offer an insight into the evolution of the nuclear or traditional family in America. Shows set in the 1950s portray the traditional family as being composed of mom, date and their children. Compare that to how families today are portrayed on TV.

Same-sex marriages, a higher rate of divorce and other changes in cultural norms make it likely that viewers see more single-parent households and households with step-parents portrayed in popular TV shows they watch. What viewers see on their TV screens reflects the societal changes affecting the cases involving custody and non-biological parents.

What began with mom staying home to care for their children while dad worked outside the home to support the family evolved into households with stay-at-home dads caring for the children and mom becoming the bread-winner. Today, the person caring for children may also include:

  • Step-parents
  • Grandparents
  • Aunts and Uncles
  • Siblings

Depending upon the circumstances the primary caregiver could be a close friend of the family. Changes in the structure of the traditional family and a broadening of the scope of the role of non-biological caregivers forced states to make changes to their child custody laws.

Virginia Child Custody Laws Offer Opportunities for Step-Parents

The legislature took note of changes in family dynamics over the years in drafting Virginia child custody laws. Children develop close bonds with relatives and people other than their parents, so the legislature included specific mention of the following categories of people who could be considered when courts make decisions about child custody:

  • Grandparents
  • Step-parents
  • Former step-parents
  • Blood relatives
  • Family members

Virginia does not have a presumption favoring one biological parent over the other. Disputes between parents must be resolved by courts based upon the evidence presented in each case by the child custody attorneys for the respective parties. It also preserves the presumption favoring the parents over other parties, but it also allows judges to consider awarding custody or visitation to someone with a legitimate interest in a child as proven by clear and convincing evidence.

Overcoming the Presumption Favoring a Biological Parent

The presumption favoring biological parents in custody cases can be a difficult hurdle for a step-parent to overcome. The following circumstances on the part of a biological parent may cause a judge to favor the step-parent in a custody case:

  • Substance abuse and addiction
  • Imprisonment
  • Child endangerment or child abuse
  • Mental illness
  • Abandonment of the child

Divorce attorneys understand the challenges presented by the presumption favoring biological parents in child custody cases require clear and persuasive evidence of it being in the best interest of a child for custody to be awarded to a step-parent.

Factors Courts Take into Consideration When Step-parents Ask for Custody

A divorce ending a marriage need not end the relationship developed between step-parents and children. As with any child custody and visitation dispute, even one between divorcing biological parents, it is better for everyone involved to amicably settle it. A negotiated settlement overseen by the divorce attorneys or child custody attorneys representing the parent and the step-parent avoids conflict and uncertainty associated with taking the matter to court.

If the case goes to court, the evidence presented must convince a judge that it would be in the best interest of a child to have custody awarded to the step-parent. Factors judges may take into consideration in deciding what is in a child’s best interest include:

  • Age and physical and mental health of the child
  • Age and physical and mental health of the parent and step-parent
  • Relationship developed by the step-parent with the child and it’s the effect of it on the emotional, physical and intellectual needs of the child
  • Role the step-parent has played and continues to play in caring for the child
  • Willingness of the parent and step-parent to allow each other to have a continuing relationship with the child
  • Willingness of the parent and step-parent to work together to resolve disputes affecting the well-being of the child.

Evidence that a parent denied a step-parent access to or visitation with a child may convince a judge that granting custody to a step-parent is in the best interest of a child. Granting custody rights to a step-parent need not infringe on the rights of the biological parents.

Courts have options when making custody decisions. Physical custody refers to the place where a child resides, and legal custody refers to having decision-making authority about medical, education and other aspects of a child’s life.

Judges have discretion about how to divide physical and legal custody. For example, a judge may decide that granting joint legal custody and physical custody to a parent and step-parent offers the best way to maintain the relationship of the child with both parties. Depending upon the circumstances in a particular case, the court may customize joint physical and legal custody to meet the best interest of a child.

Step-Parents Seeking Custody Needed Trusted Legal Advice

The family law attorneys at the Denbigh Law Center have been assisting parents and step-parents in child custody matters since 1982. Residents of Yorktown, Newport News and other communities in the Hampton Roads region look to them for compassionate legal advice and skilled representation. Contact them today at 757-877-2244.