Father wins custody battle with grandmother

A recent case from Virginia demonstrates that a parent typically has the edge in a custody battle with a non-parent and that it takes extraordinary circumstances for a non-parent to overcome that advantage.

The case involved a dispute between the father of a 9-year-old girl and the maternal grandmother she’d lived with her entire life.

The father was in jail while the girl was a baby. During that time she lived with her grandmother in what the court described as a “spacious” home. Her mother lived there too before relocating to Georgia in 2015.

At some point, after the father was released, he sought custody of his daughter. By this point, he was living in a two-bedroom home with his new wife and two sons.

The grandmother objected and filed for custody herself, arguing that the girl had always lived with her and that remaining with her would be in the best interests of the child. A “guardian ad litem” (an individual, often a lawyer or a counselor, appointed by the court to protect a child’s interests) agreed.

But a family court judge gave physical custody to the father, and after a trial gave him legal custody as well, over the objections of the grandmother, the mother and the guardian.

In ruling this way, the judge said there is a legal presumption favoring the parent in any custody case and to rebut that presumption the non-parent has to do more than show it is in the child’s best interests.  Instead, the non-parent has to give an “extraordinary” reason.  In other words, the judge said, the grandmother would have had to show “actual harm” to the child if the father got custody.

Since there was no such showing in this case — in fact, the grandmother admitted that the father was a fit parent despite having been in jail — the court awarded physical custody to the father while granting joint legal custody to him, the mother and the grandmother.

Courts in other states may look at a situation like this differently, so check with a lawyer in your state.

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