A non-parent seeking an initial award of custody to a child has to meet certain difficult standards to override the presumption that the child’s best interest will be served when in the custody of his or her parents, as stated in Bailes v. Sours, 231 Va. 96 (1986) and as reflected in Va. Code § 20-124.2(B).  If this presumption is overcome, the court must simply consider the best interests of the child in determining custody.  Id.  

A non-parent seeking an initial award of visitation with a child in the face of the objection of all living parents must prove that the child would suffer actual harm to the child’s health or welfare without such visitation, as stated in Williams v. Williams, 256 Va. 19 (1998).  As we learned here, proving actual harm can be very difficult.  Upon a finding of actual harm, the court must simply consider the best interests of the child in determining whether to award visitation.  Id.

So what’s the court to do when addressing an action to modify a non-parent’s previous award of custody or visitation?  Must the non-parent overcome the parental presumption again to maintain custody rights?  Must the non-parent prove actual harm to maintain visitation rights?  Or does the best interests standard control after the movant has proven a material change in circumstances since the date of the last custody or visitation order?

In the published decision of Rhodes v. Lang, Record No. 0263-16-2 (2016), the Virginia Court of Appeals made abundantly clear that the best interests standard applies to modification cases across the board.

It doesn’t matter whether the original rights awarded were custody rights, as was the case in Albert v. Ramirez, 45 Va. App. 799 (2005) or visitation rights, as was the case in Rhodes.  It doesn’t matter whether the original custody or visitation rights were awarded per the agreement of the parties, as was the case in Albert, or per a court’s decision at the end of a trial, as was the case in Rhodes.  And it doesn’t matter whether the original custody or visitation rights were awarded in another state, as was the case in Rhodes.  It just matters that a non-parent has already been awarded those rights in the first place, thus placing him on effectively on even-footing with the other parties in subsequent modification actions.