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After Losing the Parental Presumption,
Can a Parent Gain the Presumption Back?

The parental presumption is strong, but can be overcome if the non-parent demonstrates one of the following: (1) Parental Unfitness, (2) A Previous Order of Divestiture, (3) Voluntary Relinquishment, (4) Abandonment, or (5) Special Facts and Circumstances.  Bailes v. Sours, 231 Va. 96, 100 (1986).  If the parental presumption is rebutted, courts look only at which party would provide for the child’s best interests. 

richmond virginia divorce attorneyThe parental presumption is strong, but can be overcome if the non-parent demonstrates one of the following: (1) Parental Unfitness, (2) A Previous Order of Divestiture, (3) Voluntary Relinquishment, (4) Abandonment, or (5) Special Facts and Circumstances.  Bailes v. Sours, 231 Va. 96, 100 (1986).  If the parental presumption is rebutted, courts look only at which party would provide for the child’s best interests. 

Onto a common scenario: A biological father voluntarily relinquishes custody of his child to his mother.  The grandmother of the child raises the child for the next two years.  During those two years, the father is involved in his child’s life, but he is not the child’s primary custodian.  Let’s assume that none of the aforementioned scenario is court-ordered.  After two years of allowing his mother to raise his child, the father wishes to get his child back.  The grandmother does not think the father is ready to have his child back, so she does not agree to let the child live with its father.  A custody case in the Juvenile and Domestic Relations District Court (JDR) ensues.

The grandmother should be able to prove voluntary relinquishment, which means that the parental presumption for the father no longer applies.  Therefore, the Court will judge the father and the grandmother on a best interest standard.  As is common, the grandmother has more stable finances and housing than the father.  Most importantly, the grandmother has been keeping the child for the past two years.  Many courts, once the parental presumption is rebutted, abhor disrupting a child’s stability.  In those courts, grandmother would win custody of her son’s child.

Three years after losing custody of his child in the JDR court, the father again attempts to regain custody.  Again, the court determines that the parental presumption has been rebutted, this time because the prior court order granting custody to the grandmother is a previous order of divestiture.  The grandmother is still more stable than the father, so again she could be granted custody.

This scenario is incredibly common and begs the question: How does a parent who has lost or relinquished custody of their child, and as a result has lost the parental presumption, gain the presumption back?  The short answer is that a parent who loses the parental presumption does not regain the presumption until they are awarded custody of their child.  How does a parent, who hasn’t had custody of their child for some period of time, regain custody of their child if they’ve lost the presumption that would make it easier for them to regain custody?  Well, the parent must prove that the child’s best interests would be served by living with them and not the non-parent.

Losing the parental presumption is not the death knell in the parent’s quest to regain custody, but it does make regaining custody much more difficult.  Once the presumption is rebutted, the argument that “I am the child’s parent,” is no longer entitled to any weight by the court.  Should courts give weight to that argument, even though the parental presumption has been rebutted?  Currently, there is no statute or case law which requires a court to consider that a parent should have their child over a non-parent, once the presumption is rebutted. Should that change?

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