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Doctor's Note: Grandparents Visitation

Last year, constituents came to me with a tragic story about their adult son’s death after suffering a brain injury. What made it worse was when their son died they also lost their grandchildren. They had a good relationship with their son, but a contentious relationship with their daughter-in-law. So, when their son was no longer around, the daughter-in-law denied them visitation. While many other states have found a way to both preserve parents rights and allow a legal path for grandparents to have visitation, current Virginia law offers virtually no options in this situation.

While working on this legislation I have learned of other families with painful stories of separation. This Session, I introduced legislation (SB 1325) to help families.

Virginia is a parental rights state, meaning that a parent has the sole right to make decisions concerning the upbringing, education, and care of their child. In the case with my constituent, after their son died, their daughter-in-law objected to visitation. This left the grandparents with one final option and that is to prove “actual harm” - meaning the grandparents have to prove that their absence in the child’s life would result in actual harm. That is a high standard to overcome.

The American Psychological Association has published research that suggests that for children who only have one parent (or a “lone-parent” household), involvement from grandparents improved a child’s well-being. There’s additional evidence that correlates a child’s deeper interest in school, sports, or other extracurricular activities with families that have involvement and investment from family members outside of their immediate family, such as grandparents.

Granting grandparent visitation in the right circumstances can be a mutually beneficial relationship to them and the child.

Some states have solved this problem. Neighboring states like Tennessee and West Virginia have found constitutionally sound ways to balance the rights of grandparents while still respecting the parent’s decisions. At present, Virginia still has some of the strictest laws in the country, but I hope we can change that.

My bill would solve this problem by giving voice to the absent parent. It would allow grandparents to now have the ability to prove the intent of the deceased parent. If Dad’s parents, for example, could prove that Dad would have wanted visitation, then you have a scenario where one parent wants visitation and the other doesn’t. In that case, the grandparents only need to meet the “best interests” standard to get visitation which is much easier to achieve.

The stories I have heard are all from the grandparents perspective revealing the tragedy and injustice of separation. Unfortunately, there are absolutely other situations where parents need to protect their children from a detrimental relationship and no authority should interfere. The precedent of parental rights is sacrosanct and wise. Prior attempts to find a legislative solution have conflicted with the supremacy of parental rights. This legislation finds a bridge between the two - it supports parental rights by allowing the court to consider the intent of the deceased or incapacitated parent.

The court is the right place to adjudicate complicated family relationships and this legislation gives the court the ability to hear the voice of the missing parents and their extended family.

With this bill, we have the opportunity to give thousands of grandparents in Virginia a chance to see their grandchildren in cases where their child is deceased or incapacitated. With the help of advocates, this bill passed out of the Senate on Tuesday, February 2, 2021, and is now on its way to the House. If you want to help, please contact your state Delegate and ask that they support this bill to afford grandparents this opportunity.

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