Running head: FAMILY TIES 1

Family Ties: A Legal Analysis of Grandparents Visitation and Custodial Rights

Stephanie A. Hollie

Legal Studies Academy

First Colonial High School

FAMILY TIES 2

Abstract

In this paper a general overview of the state of Virginia's legislation for visitation and custody to

third parties, primarily grandparents, will be analysed and explained. A simplified definition of

the current legislations in place is given while also giving a brief summary of the precendenting

Supreme Court case that is used as reference in the majority of states custodial and visitation

legislation, and two more cases of parents filing to appeal against visitation granted to

grandparents. A comparison and contrast is given for three selected states, California, Florida,

and Washington, to the legislation of Virginia. An explanation of the importance of the

grandparent and grandchild bond as well as the role of the grandparent in the life of a child is

given.
FAMILY TIES 3

Family Ties: A Legal Analysis of Grandparent Custodial and Visitation

On July 16, 2017, Bruce Collins*(see end of paper) was murdered by his wife Jennifer

Collins*. When the police came to arrest her, they found their daughter, Sydony Sullivan*,

standing near her father with her clothes covered in his blood. After Bruce’s funeral, his

mother, Hope Collins*, began to fight for custody of Sydony with Jennifer’s sister Karen Lee*.

Sydony lived with Karen while Mrs. Collins receive occasional visits of her granddaughter. While

the battle for custody was happening, Jennifer’s case was going on at the same time. In

September 2018, Jennifer was found not guilty of second degree murder, and the case was

deemed as one of self defense. Since Sydony’s mother was now free, she automatically

regained custody of Sydony. The fight for custody for Mrs. Collins then became a fight for

visitation. Mrs. Collins expressed how difficult the process was and how the Virginia laws

expectantly favoured parents, leaving for it to be a steep challenge for grandparents to even

receive visitation. However, in January 2019, Mrs. Collins received amazing news that she

would be receiving visitation of her granddaughter, even with her persistent doubts of receiving

such news. Mrs. Collin’s story in visitation is not the first of its kind. Seeking custody or

visitation for grandparents is a tough battle. Even with bringing forth enough evidence to show

that the best interest is in mind when filing the suit, it is not unlikely that the courts will side

with the parents.

Virginia Legislation

In a broad sense grandparents do not have rights over their grandchildren. The

Constitution protects the rights of the parents to govern over their child, making it hard for one

to try to intervene between the parent’s way of caring for a child. However, the legislation in
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place does provide help to them and other extended family members in the road to seeking

custody and visitation. Virginia’s custody and visitation laws stated in §20-124.1. explains how a

“person of legitimate interest,” simply meaning one who is related to the minor in question and

has formed some sort of previous relationship with said minor, may seek visitation. However,

there are certain instances in which one would not be allowed to file a suit, such as, but not

limited to, if one previously lost parental rights (Va. Code §20-124.1.). Virginia attorney Mr.

Brook Thibault explains though Virginia has long shown a preference to parents over third

parties in such disputes, the courts seem to be more open to granted visitation one if the

relations between parent and child has been lost and is beneficial to the child. Along with that,

he explained that there are ten factors, or tests, that the courts use in order to find that the

best interest of the child is in the mind of those who filed the suit as they are stated in §20-

124.3.(B. M. Thibault, personal communication, December 4, 2019). An example of one is the

importance of maintaining the child’s relationship with family members other than their

parents.(Va. Code §20-124.3.). Mr. Thibault explains the general idea of the courts, in his

professional opinion, is that in such disputes between parents and grandparents, the overlying

factor is the best interest of the child.

Case Law

Troxel v. Granville

When states determine what rights they shall give in visitation statutes, the majority of

states heavily rely on the precedents Supreme Court case as a main reference. That Supreme

Court case is Troxel v. Granville. To give an overview of the case, Tommie Granville and Brad

Troxel were married with two daughters; however, they later separated in a divorce. Two years
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after this event, Brad Troxel committed suicide. Before his death, Brad’s parents had regularly

seen their granddaughters on weekends. Granville, after the death of her husband, had their

visits shortened to one visit every month. The Troxels’ filed to have their visitation rights

restored under section 26.10.160(3) of the Revised Code of Washington, which states, “The

court may modify an order granting or denying visitation rights whenever modification would

serve the best interests of the child”(2011). The Washington Superior Court ruled in favor of the

Troxels, granting them more visitation time than they had requested. When Granville appealed

to the Washington court of appeals, it was later ruled that such a decision infringes on the

rights of a parent over their child which the Washington Supreme Court affirmed saying such a

statute infringed on parental rights. When brought to the Supreme Court, it was questioned

whether the Washington statute, allowing anyone to petition to the court filing a suit to see a

child against the will of a custodial parent, is unconstitutional. The decision was 6-3, affirming

the two courts’ previous judgments that such a statute is unconstitutional. The Court held that

such a statute violates the due process rights of the Fourteenth Amendment, for parents to

have ultimate rule of judgement in having control of their children. Justice O’Connor stated

that, “the liberty interest at issue in this case - - the interest of parents in the care, custody, and

control of their children - - is perhaps the oldest of fundamental interest recognized by this

Court”(Justice O’Connor, 2000). This means that the court recognizes that it is basic

understanding, even in a court of law, that the rule of the parent over their child in the ultimate

care of the child, is understood to be the best interest of the child.

Dotson v. Hylton
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Kathy Dotson and her husband Jeffery Hylton were divorced in November 1995. The two

had a daughter who was four at the time of the divorce. The parents were decided to have joint

legal custody with physical custody to the mother, also granting visitation to the father. In

March 1998, Jeffery was sentenced to ten years in a penitentiary. Soon after, Kathy filed suit for

sole custody to which Jeffery did not object. Jeffery did request that both he and his mother be

granted visitation of his daughter, which both were granted. Kathy appealed the decision,

arguing that the trial court failed to find that visitation would be detrimental to her child if not

given. She further claims that the court failed to provide sufficient evidence to support granting

visitation. The court affirmed the previous decision of granting visitation to grandmother and

father finding that grandparents are parties with legitimate interest over a child, and that the

grandmother's previous established relationship with the child, supports the awarded

visitation. The courts sited codes § 20-124.2 and § 20-124.3 in reference to their decision

(Dotson v. Hylton, 1999).

Other State Legislations

Each state has different and similar legislations in place when dealing with visitation.

The following is a small explanation of the visitation legislations in California, Florida, and

Washington to make a comparison to Virginia’s legislations.

California

The courts may grant visitation rights to the grandparents if the court does both of the

following: Finds a preexisting relationship between the minor child and the grandparent that

makes visitation be deemed as the best interest of the child; and balances the interest of the
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minor child against the right of the parents to exercise parental authority (Cal.Fam. Code §10,

2015).

A petition for visitation shall not be considered if the parents or guardians of the child

are still living together. Other circumstances may apply such as if a parent is incarcerated or is

otherwise not present in the life of the child. If the following circumstances no longer exist over

time, the courts may end the granted visitation (Cal.Fam. Code§10, 2015).

Florida

Florida’s visitation laws are more specific in a scenario than others. As stated in Chapter

752 section .011 of the 2019 Florida Statutes, grandparents are allowed to petition for visitation

if, “The parents of the child are deceased, missing, or in a vegetative state.”Any other specific

scenarios that the court deems important, such as any possible threat of the child’s physical,

mental, and emotional wellbeing may be considered. The courts must also identify some sort of

preexisting relationship between the child and grandparent, which the courts may question the

quality by the previous involvement the grandparent had in the child’s life. The courts will also

try to determine if the ended contact between grandparent and child may cause some sort of

harm to the child (Fla. Stat. Code § 752.001, 2019).

Washington

Stated under the Washington legislation, RCW 26.11.020, a person who is not the

parent of the minor who they seek visitation of may petition for visitation with the child if the

following is met: The petitioner has a previously established relationship with the child, is

related to the child of the parent of the child, and/or if the child may suffer harm if visitation is

not granted (Wash. Rev. Code §26.11.020, 2018).

FAMILY TIES 8

Each legislation of these three states contain an abundance of similarities. One of these

similarities is that seems to be of large importance is that there must be a preexisting

relationship between the grandparent and child. In the Washington statute they put their own

interpretation of an established relationship. In §26.11.020, it is interpreted as a relationship

formed and sustained from interactions, companionship, and mutual interest and affection,

without any sort of expected financial benefit that is maintained for a minimum of two years.

Unless, the child is less than the age of two, then it must be sustained for at least half of the

child’s life. The best interest of the child is the biggest factor in all of this. Though the parents

do have rights, from reading over these legislations, it shows that the courts primarily have

what is best for the child in mind with these decisions.

The Importance of a Grandparent and Grandchild Relationship

No bond may be the same between people. Each bond that a person may between

family and peers differ greatly. For example, there is a special bond between a parent and child

that could not be replicated between said child and a friend and vice versa. With this

considered, there is also one special bond found in the attachment between one grandparent

and grandchild that can not be replicated. This bond is important to keep nourished

(Kornhaber,2002,ch.42). A close relationship between grandparents and grandchildren has

been shown to be beneficial to both parties. Grandparents can play many roles in the lives of

their grandchildren, from a caregiver to a playmate. The strong connection between them that

grows allows for the grandparent to instill family values and teach traditions to the child

(Importance of Grandparents,” n.d.). Sara Moorman explains that grandparents share stories

with their grandchildren about their life and how things were when they were young, which the
FAMILY TIES 9

grandchildren can use the fruits of what they learned from those stories in their lives as adults.

Many past studies show that an established relationship increases the quality of life. In an

Australian study, researchers found that having a grandparent involved in the lives of their

grandchildren help for them to remain mentally sharp (Albernaz, 2015). Another study showed

that for more than 1,500 English children, that with the more quality time that they spent with

their grandparents, the fewer emotional and behavioural issues were shown (“Grandparent

Contribute,” n.d.). A strong connection between grandparent and child has even showed to

benefit children by showing a link in the bond to pro-social behavior in children (Albernaz,

2015.). This unique bond is important even though hardships in the family such as a divorce or

remarriage, or even if the child is going through in hard personal experiences. Sometimes that

grandparent of the child is a resource to be able to open up about how these situations may be

affecting them (Albernaz, 2015, p.n.d.). In his article, “Why Grandparent Matter More than

Ever,” Jeff Anderson provides 10 reasons why grandparents are an important resource for

raising children. These include qualities in personality that maybe seen as preferable in caring

for a child as well as logical reasoning. The following are a few of those examples and

reasonings.

Grandparents Make Difference in their Grandchildren’s Lives

More than fifty percent of grandparents state that they see their grandchildren at least

once a week. 92 percent are actively caring for their grandchildren. The time that is spent with

their grandparents helps to benefit the child in being happy and healthy. Anderson quotes Dr.

Karl Pillemer saying “Research shows that as many as nine out of ten adult grandchildren feel
FAMILY TIES 10

their grandparents influenced their values and behaviours. Grandparents transmit to their

grandchildren the values and norms of social order” (Anderson, 2013).

More Children have Grandparents

The life expectancy of adults have gone up in the past several decades. While in 1900 50

percent of American children had at two grandparents, at least, that percentage grew to 90 in

1976 (Anderson, 2013).

Intergenerational Households are on the Rise

The numbers of intergenerational households have been growing over the years. At the

time of publication of the article, at the last United State census, it was found that more than

10 percent of children lived with at least one grandparent. At the time even the White House

was intergenerational when the First Lady Michelle Obama moved her mother, Marian Shields

Robinson, into the White House to help raise her children (Anderson, 2013).

Many Children are Raised by Their Grandparents

The same census mentioned before found that 2.7 million grandparents are the primary

caregivers of grandchildren and providing them with all of their basic needs (Anderson, 2013).

Grandparents have spending power

At the time of publication, grandparents had control of 75 percent of the wealth in the

United States. A survey by MetLife even found that grandparents would annually spend 1,700

dollars on their grandchildren annually (Anderson, 2013).

Grandparents Give Back to the Community

One of the most common beliefs is that older generations are more giving of their

money and time. According to a survey done by the American Grandparents Association,
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grandparent of 45 percent of the cash donations at nonprofits. 15 percent of grandparents

volunteer there time to the homeless (Anderson, 2013).

Grandparents Love Their Role

A survey done by the American Grandparents Association found that 72 percent of

grandparents find enjoyment in their roles as caring for their grandchildren (Anderson, 2013).

Grandparents have Valuable Experience

Grandparents have an abundance of past parenting experience that they can use in the

care of their grandchildren. Another survey done by the American Grandparents Association

found that grandparents believe that they could do better in caring for their grandchildren than

how they raised their own children (Anderson, 2013).

Susan Adcox cites six factours in keeping this strong relationship steady: physical

proximity, frequency of contact, grandparents’ function within the family, the concept of

normalcy, emotional bonding, and reaching consensus on values.

Physical Proximity

One of the strongest factours in closest of the relationship between grandparent and

grandchild is where they are physically located and the closeness of those locations. Though

location may out of the control of the grandparents, some often make the decision to move

closer for their grandchildren; however, for those without the option to move, financial and

health problems often affects their ability to travel. Due to the advancement in technology,

grandparents have been able to communicate with their grandchildren via things such

FaceTime or Skype. Though many agree that nothing can substitute physical connection (Adcox,

2019).
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Frequency of Contact

Though physical distance can often be a factour in frequent contact other cases such as

a divorce can affect the amount of contact between grandparents and grandchild greatly.

Though the grandparents on the side of custodial parent has more likely increased contact, the

grandparent on the side of the non-custodial parent does not have as much luck. Due to

women being the ones who receive custody more often the men, most often than not the

paternal grandparents are the one who are less active in the grandchildren’s lives (Adcox,

2019).

Grandparents Function within the Family

Grandparents who provide child care or are guardians for their grandchildren are able to

build a greater bond with their grandchildren. Though some grandparents wish that they could

just be the normal grandparent that spoils their grandparent rather than a day care for their

children, research shows the whichever function in the family they may have, it will help build

closeness with grandchildren (Adcox, 2019).

The Concept of Normalcy

When a family grows with an expectation that there will be strong bonds between

generations it is more likely for the bond to exist. When families build up those important roles

of caretaking and activeness in keeping connection with extended families, that strong

grandparent and grandchild bonds can grow (Adcox, 2019).

Emotional Bonding

Grandparents and grandchildren may express closeness on both sides, however the

degree of that closeness are different for both parties. Grandparents will express a greater
FAMILY TIES 13

closeness due to their peers and older relatives that may die or move away, so there inner

circle closes in. While for the grandchildren, as they grow, their inner circles will grow with the

new friends the make on their journey in life; however, it is important that grandparents

establish that early emotional connection with grandchild early on in the child’s life to help

keep a lasting bond. Research does show that the parents are important in determining the

closeness between the two parties (Adcox, 2019).

Reaching a Consensus on Values

Family values build through the parents and grandparents into the grandchildren.

Though the grandchildren will later develop values of their own, families with similarities in

values are often closest. Research has found that the younger generations with believe the

elder to have less social tolerance and be more hypocritical. It is suggested that grandparents

have the openness to listen to the younger generations to avoid conflicts without letting go of

their own values (Adcox, 2019).

The Trend of Grandparents as Daycare

Having a close relationship established even benefit parents in providing someone to

rely on when they are in need of help when caring for their children. Grandparents helping with

watching over children is not uncommon and it only seems to be becoming more common in

our society. In her article in the New York Times, Paula Span explains the life of three

grandparents, including herself, in providing daycare for their children to watch their

grandchildren. Ms. Span, M. Bill Borbely, and Ms. Carol Hewitt all spend a significant amount of

time a week watching their grandchildren of various ages. Ms. Span explains their stories as

being active in their grandchildren’s life from birth to the date of publication of the article. They
FAMILY TIES 14

even teach to do important everyday tasks, Ms. Span having her granddaughter help her do

dishes and laundry and Mr. Borbely mowing his children’s law. Sociologists named this trend of

grandparents spending a significant amount of hours in helping with child care as, “intensive

grandparenting,” Ms. Span expresses how being active in she grandchildren’s lives not

something the seems to regret doing. She quotes Ms. Hewitt saying, “I have incredible gratitude

that my daughter and son-in-law have trusted me to help their children” (Span, 2019). Research

from Madonna Harrington Meyer, a sociologist at Syracuse University, analyzed grandparents

between the ages of 51 and 70 with jobs, in which 45 percent of them were providing care for

their grandchildren that she believes is likely to increase (Span, 2019). Jessica Mendoza writes

that about 2.7 million grandparents are the main caregiver of their grandchildren, which has

gone up by seven percent since 2009 as of the date of publication (Mendoza, 2016). As

caregivers, the bond formed between grandparent and grandchild can grow so much more than

imagined. This growth isn’t only beneficial for grandparents though. Susan Wells, explained

how relying on her in-laws to be caregivers of her children were helpful for here to continue in

her career as well as have more personal time. Grandparents being caretakers is a great

opportunity; however, of course there can be some setbacks. Mrs.Wells also explained how her

in-laws spoiled her children a little to much and was hesitant to set rules due to her lack of

experience as a parent and not paying them for their service. Mrs.Wells provides good points

that though it is natural for a grandparent to want to spoil their grandchild that boundaries and

rules do need to be set when the grandparent takes care of the child (Wells, 2011).

Grandparents raising Grandchildren

FAMILY TIES 15

It is not uncommon to find that a grandparent is raising their grandchild. Along with

grandparents being the caretakers of their grandchildren, the numbers in grandparents being

the guardian of their grandchildren has been growing. In 2010, one out of fourteen children live

with their grandparents in the U.S. This trend has risen in the past several decades, the

percentage doubling from 1970 to 2010 from three percent to seven percent. Researchers have

also noticed a sudden raise in grandparent guardianship during times of the 1980s crack

cocaine epidemic and the “Great Recession” between the years 2007 and 2009 (Scommegna,

2012). Though there are few households in which grandparents providing care for child with

the parent exist, there are connections to complicated family circumstances leading to the

situation which causes distress for both the child and grandparent (Scommegna, 2012).

Conclusion

The grandparent and grandchild bond is a special bond that should be protected and

nourished. The unique bond provides benefits for both parties from social productivity in

children to keeping a healthy mental capacity for grandparents. Truthfully though,

grandparents have no rights to their grandchildren and the courts will favour to thee rights of

the parents, there is not a loss of hope for grandparents in keeping the relationship with their

grandchildren strong. When able to prove that the reason to pursue visitation or custody of the

grandchild is that of the best interest of the child and/or the parent if unfit to care for the child,

the grandparent of the child has hope to keep that connection with their grandchild.

*Names have been changed to protect the privacy of those involved

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