Consider the following scenario: John and Jane give birth to their first and only child, John Jr. Shortly after the child is born, John and Jane separate and begin dissolving their marriage. John Jr. was only a year old when the divorce decree was issued. However, there are no provisions in the divorce decree concerning custody of John Jr. Ultimately, John Jr. remains with his father, and Jane has visitation rights. (As strange as this may sound, everything we are discussing is based on an actual case that we will get to in a moment.)
John remarries, and now John Jr. has a new stepmother. Around the time John Jr. is two, he begins screaming every time he has to visit his biological mother, Jane. John doesn’t make John Jr. see his mother and even makes repeated threats to take him away from Jane entirely if she forces the visits.
Over the next several years, John Jr. grows distant from his mother but develops a strong relationship with his stepmother—and the stepmother’s family. By John Jr.’s 12th birthday, he’s referring to his stepmother as “mom.” To make the situation more tragic and complicated, John Jr.’s father passes away. Does John Jr. return to his biological mother, or does he remain with his stepmother, with whom he has developed a close relationship?
The Five Factors
The example we provided mirrors the case Bailes v. Sours (1986). A custody dispute between a biological mother and a child’s stepmother that occurred after the child’s father passed away. The stepmother argued that the child’s best interests would be served if the child stayed with her, and some psychologists backed the child’s deep-rooted anxiety about being returned to his mother. They were even concerned about the child being suicidal. The child wanted to remain with his stepmother.
However, the evidence showed that the stepmother and mother were fit parents. This case had a series of appeals, but the result has more enormous ramifications. In custody cases, there was a presumption the biological parent got preference over the non-biological parent. The Bailes v. Sour case showed that the decision to award the birth parent with custody was neither “conclusive” nor “automatic.” The title of this section is derived from the factors that would lead the court to believe that awarding the biological parent with custody was not in the child’s best interest and rather, custody should be awarded to a third party with a legitimate interest.
- Parental unfitness
- A previous order of divestiture (when a court has previously granted a third-party custody)
- Voluntary relinquishment
- Abandonment
- Special reasons or circumstances
How This Applies To You
This means that people with a legitimate interest can file for custody. Virginia Code specifically defines a person with a legitimate interest as including grandparents, step grandparents, stepparents, former stepparents, blood relatives and family members. However, it doesn’t end there. Virginia specifically allows the term “person with a legitimate interest” to be broadly construed; meaning, in some cases, you don’t even need to be a family member. You can be defined as a person with a legitimate interest, or you and your attorney can prove you are one. For example, a mother leaves the child with the babysitter and doesn’t return for a year. Though the babysitter has no biological connection to the child, they can show they have been the primary caregiver after the mother abandoned her son or daughter.
The important takeaway from today’s article is that a biological connection doesn’t have to exist for you to have custody of a child. A child’s best interests aren’t automatically met by keeping them with their biological parents. If you have additional legal concerns about custody, visitation, or other areas of family law, contact Norton Pelt to schedule your consultation.
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