8.6 Parties and Burden of Proof

• Library: Virginia Family Law: A Systematic Approach (Virginia CLE) (2018 Ed.)

8.6 PARTIES AND BURDEN OF PROOF

8.601 "Person with a Legitimate Interest." In a child custody or visitation dispute, standing to be heard in the matter is conferred on any person with a legitimate interest. Pursuant to section 20-124.1 of the Virginia Code, the phrase "person with a legitimate interest" must be broadly construed to accommodate the best interests of the child and includes, but is not limited to, grandparents, step-grandparents, stepparents, former stepparents, blood relatives, and family members, provided that such party has intervened in the suit or is otherwise properly before the court. ⁴² Although a parent has legal standing to file a petition regarding custody or visitation, the parent may be enjoined from filing a petition for up to 10 years if the parent has been convicted of certain criminal offenses and if it will serve the best interests of the child. ⁴³

A party with a legitimate interest does not include any person (i) whose parental rights have been terminated by court order, either voluntarily or involuntarily; (ii) whose interest in the child derives from or through a person whose parental rights have been so terminated, including but not limited to grandparents, stepparents, former stepparents, blood relatives,

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and family members, if the child subsequently has been legally adopted ⁴⁴ except where a final order of adoption is entered pursuant to section 63.2-1241 of the Virginia Code; or (iii) who has been convicted of a violation of section 18.2-61(A), section 18.2-63, or section 18.2-366(B) when the child who is the subject of the petition was conceived as a result of the violation. ⁴⁵ The procedural and substantive requirements of section 16.1-283 must be met to terminate a party's parental rights and to give a court jurisdiction to do so. Except in certain cases where a stepparent is adopting the child of a custodial parent with the other natural parent's agreement, parties cannot agree to terminate their parental rights or child support obligations, and an order entered based on such an agreement is a nullity. ⁴⁶

If counsel represents a grandparent or other nonparent who seeks a determination of custody or visitation, it is best to file a petition in the juvenile and domestic relations district court. It is clear that the nonparent with a legitimate interest may initiate an action in the juvenile and domestic relations district court, but the circuit court presents a different matter. ⁴⁷ Aside from the rarely used habeas corpus action, a grandparent or other nonparent may seek relief in the circuit court as a "person with a legitimate interest" only if "such party has intervened in the suit or is otherwise properly before the court." ⁴⁸ This could occur, for example, if a grandparent or other non-parent seeks to assert a claim by intervening in a divorce suit between the child's parents. The typical divorce suit involves several other issues that may not include the interests of the grandparent or other nonparent, such as support and property issues. To avoid becoming entangled in this sort of complicated circuit court litigation, the grandparent or other nonparent is advised to bring a petition in the juvenile and domestic relations district court.

8.602 Necessary Parties. Counsel should carefully identify those who should be parties to the proceeding. Failure to name a necessary party might prevent the court from proceeding. ⁴⁹ A child's parents, guardian, legal

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custodian or other person standing in loco parentis and a spouse should be included. ⁵⁰ Also consider all individuals who have physical custody of a child or claim a right to legal or physical custody of or visitation with the child. ⁵¹ A circuit court proceeding should conform to general rules governing joinder of parties, including those who have or claim an interest relating to the subject of the proceeding. ⁵² While the lack of a necessary party does not defeat the court's subject matter jurisdiction, the court should not proceed unless it makes the findings required by law. ⁵³

8.603 Parent Versus Parent. The relationship between a parent ⁵⁴ and child is constitutionally protected. The constitutional protections extend to a parent's interests relating to the care and control of the child, and the child's interests in having the support and involvement of both parents. ⁵⁵ Section 20-124.2 requires that the "best interests" of the child be given "primary consideration" by the trial court in determining custody of the child. In contests between parents of the child, there is no presumption or inference of law in favor of either parent and no presumption in favor of any particular form of custody. ⁵⁶ The "tender years" presumption or inference in favor of a child's mother has been negated by this statute. Among the factors that the trial court is required to consider are the age and physical and mental condition of the child, the child's changing developmental needs, and the relation-a proceeding to obtain primary physical custody of the child, naming the father as a party but not the stepmother. The Court of Appeals reversed and remanded, reasoning that the trial court could not have proceeded properly without joining the stepmother, who had visitation with the child granted in a separate proceeding.

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ship between each parent and the child, including the positive involvement in the child's life and the ability to accurately assess and meet the emotional, intellectual, and physical needs of the child. ⁵⁷ These factors lead counsel to offer much of the same evidence that, in prior years, would have been...