My son's ex-wife is trying to exclude us from seeing our grandchild. Can she legally do this?
Grandparents are included in what Virginia refers to as parties with a legitimate interest in the law governing child visitation. The court also takes the child's interests into account when it comes to deciding custody. The child's relationship with his extended family including grandparents is one of the factors when custody is decided.
In the event of a divorce the grandparents could intervene with a petition to request visitation. Interestingly, there is case law in Virginia that indicates that grandparents can be excluded from visitation when the family is intact. Still, married parents can exclude others from visitation based upon their right to raise their family in private and in their own manner.
You certainly have the opportunity to see your grandchildren when they are with your son. The court may allow additional visitation for you as well because in your case the family is not intact. Your son has input into the visitation arrangements for the children as well as the mother.
There is a brand new case from the Supreme Court of the United States that has effected grandparents’ visitation rights. It can also effect the Virginia law on this subject. In that case the mother had the ability to allow or disallow visitation with the grandchild because of her right to privacy in how she raised her child and was able to dictate the visitation rights. However, in that case the child's father had died and the father was not involved. Your case is different in that your son is still involved in the decision.
If you wish to contest the matter you may want to seek separate counsel from your son to prevent a conflict and make sure your case is presented in your best interests.