Hello Image! At the outset, please accept my condolences for your
family's losses, and my deepest respect and admiration for your
willingness to help keep Sarah where she is happy and safe. I think I
have some good news for you. Both California and Virginia will allow a
step-parent to petition for custody, and neither state gives
preference to a grandparent over a step-parent.
Here's an overview of Virginia law:
?The Virginia Code §20-124.2 requires the courts of Virginia to
determine custody and visitation based upon the ?best interests of the
child?. While the court will typically award custody to a parent,
anyone with a ?legitimate interest? in the child may petition and be
?In determining an award of custody or visitation, pursuant to
Virginia Code §20-124.3, the court must consider ten factors:
1. The age, physical and mental condition of the child
2. The age and physical and mental condition of each parent;
3. The relationship existing between each parent and each child.
4. The needs of the child, giving due consideration to other important
relationships of the child, including but not limited to siblings,
peers and extended family members;
5. The role which each parent has played and will play in the future,
in the upbringing and care of the child;
6. The propensity of each parent to actively support the child's
contact and relationship with the other parent, including whether a
parent has unreasonably denied the other parent access to or
visitation with the child;
7. The relative willingness and demonstrated ability of each parent to
maintain a close and continuing relationship with the child, and the
ability of each parent to cooperate in and resolve disputes regarding
matters affecting the child;
8. The reasonable preference of the child, if the court deems the
child to be of reasonable intelligence, understanding, age and
experience to express such a preference;
9. Any history of family abuse as that term is defined in § 16.1-228 ; and
10. Such other factors as the court deems necessary and proper to the
Virginia law (Section 20-124.1) specifically includes a stepparent as
one with a ?legitimate interest? in a child.
?"Person with a legitimate interest" shall be broadly construed and
includes, but is not limited to grandparents, stepparents, former
stepparents, blood relatives and family members provided any such
party has intervened in the suit or is otherwise properly before the
court. The term shall be broadly construed to accommodate the best
interest of the child.?
The phrasing of that Code section leads me to believe that
?grandparent? and ?stepparent? are of equal stature, and no automatic
preference should be granted to the grandparent. This conclusion is
reinforced by the next section, Section 20-124.2, which provides that
?The court shall give due regard to the primacy of the parent-child
relationship but may upon a showing by clear and convincing evidence
that the best interest of the child would be served thereby award
custody or visitation to any other person with a legitimate interest.?
In other words, even the PARENT-child relationship may be overcome by
clear and convincing evidence, and ?any other person with a legitimate
interest? is on a level playing field with any other non-parent. If
the Legislature intended to place blood relatives on a higher plane
than stepparents, this would be the place to say so. They didn?t.
Only a parent?s relationship is primary. Once you get past that, then
all other ?persons with legitimate interest? should be equal.
The Court is obligated to consider the best interests of the child
pursuant to § 20-124.3. As noted above, the Court should consider
such things as the reasonable preference of the child; the child?s
other relationships, including those with peers; and the prospective
custodian?s existing role. It looks to me that those factors weigh in
favor of the stepparent, not the grandparent.
However, you indicate that the grandparent already has legal custody
of the child. If that is the case, the burden of proof will be on
the stepparent in her efforts to change that custody order. ?[W]here
the unchallenged order of a juvenile court remains in effect . . . the
burden is on a parent who seeks to change the custody to show that
circumstances have so changed that the best interests of the child
require the transfer.? Harper v. Harper, 217 Va. 477, 479, 229 S.E.2d
875, 876 (1976) (citing Dyer v.
Howell, 212 Va. 453, 456, 184 S.E.2d 789, 792 (1971))?
It is also possible ? IF the grandmother has a valid custody order ?
that the California courts, rather than the Virginia courts, have
continuing jurisdiction over the child. If there is a valid
California custody order, then the petition to change the child?s
custodian must be brought in California, and cannot be brought in
Fortunately, California law also permits custody to be awarded to a
stepparent if it is in the child?s best interests. In fact,
California law (Family Code Section 3040) sets forth a PREFERENCE for
custody to be awarded to the person who has actually been caring for
?3040. (a) Custody should be granted in the following order of
preference according to the best interest of the child as provided in
Sections 3011 and 3020:
(1)[to a parent]
(2) If to neither parent, to the person or persons in whose home
the child has been living in a wholesome and stable environment.?
Note that, while parents come first in priority, the very next on the
priority list is the person actually caring for the child. That?s
your stepmother, not the grandmother.
So: the first order of business is to find out whether there is a
valid custody order. If there is, and it was issued in California and
the California courts have continuing jurisdiction, then proceed in
California to have it changed. If not, then proceed in Virginia. But
either way, I think the preference will be to keep the child where she
Best of luck to your family. If I can provide any further assistance,
please don't hesitate to ask for clarification. Thanks!