Can Biological Parents Regain Custody? Your Complete Guide to Virginia's New Rights Restoration Laws

If you're a biological parent whose rights were terminated and you're wondering if there's any way back to your child, you're not alone. Virginia's family law system has evolved significantly, especially with the 2025 updates that expanded pathways for parental rights restoration. While the road isn't easy, understanding your options can help you navigate this challenging situation.

The short answer is yes: biological parents can potentially regain custody in Virginia, but only under very specific circumstances and through a complex legal process. Here's everything you need to know about Virginia's rights restoration laws and how they might apply to your situation.

Understanding the Fundamental Legal Barrier

Let's start with the hard truth: if a Virginia court terminated your parental rights, you cannot directly file a petition to regain custody yourself. Under Virginia Code Section 20-124.1, once your parental rights are terminated: whether voluntarily or involuntarily: you lose what the law calls "legitimate interest" status. This means you no longer have legal standing to file custody petitions on your own behalf.

This isn't just a technicality: it reflects Virginia's approach that terminated parental rights represent a final determination designed to provide stability for children. The law treats this termination seriously, recognizing that children need permanency and protection from repeated legal disruptions.

However, Virginia Code Section 16.1-283.2, enacted in 2013 and expanded in 2025, created limited exceptions to this rule. The key word here is "limited": restoration is possible, but only when specific conditions are met and only when someone else advocates for you.

Who Has the Power to File for Restoration?

Since you can't file for restoration yourself, understanding who can file on your behalf becomes crucial. The law designates specific individuals with the authority to initiate this process, and these vary based on your child's age.

For Children 14 Years and Older:

• The local department of social services where your child resides

• Your child's court-appointed guardian ad litem

For Children Under 14:

• A joint petition filed by both the child's guardian ad litem and the local department of social services

• In sibling cases, if another child in the family meets restoration criteria and has a pending petition

The rationale behind these restrictions is protection. Virginia requires that trained professionals: social workers and legal advocates: evaluate whether restoration serves the child's best interests before any legal action begins.

Age-Specific Requirements You Must Meet

Virginia's restoration process recognizes that teenagers have different needs and decision-making capacity than younger children. Here's what must be true for restoration to even be considered:

For Teenagers (14 and Older)

Your situation must check all these boxes:

• Mutual consent: Both you and your child must agree to restoration

• Prior adjudication: Your child was previously adjudicated as abused, neglected, delinquent, or in need of services

• No stable permanent placement: Your child hasn't achieved lasting permanency, or any previous permanent placement wasn't sustained

• Two-year waiting period: At least two years have passed since termination (courts may waive this if your child will turn 18 before the waiting period ends)

For Younger Children (Under 14)

The requirements are similar, but the process typically requires more extensive evaluation by both the guardian ad litem and social services before any petition moves forward. The focus shifts heavily toward professional assessment of your readiness and the child's needs.

Virginia's Two-Hearing Restoration Process

If someone files a petition on your behalf and you meet the basic requirements, Virginia uses a deliberate two-stage process to evaluate restoration. This isn't a quick fix: it's designed to thoroughly assess your readiness for parenting responsibilities.

First Hearing: Proving Your Readiness

At the initial hearing, you must demonstrate with "clear and convincing evidence" that you're capable of caring for your child. This is a high legal standard: higher than "preponderance of evidence" but lower than "beyond reasonable doubt."

The court examines:

• Evidence of your rehabilitation since rights were terminated

• Your current living situation and stability

• Your ability to provide for your child's physical, emotional, and educational needs

• Whether restoration serves your child's best interests

If successful, the court grants temporary restoration of your parental rights. This isn't the finish line: it's the beginning of a probationary period.

The Six-Month Supervision Period

Following temporary restoration, the local department of social services typically supervises your ability to care for your child for approximately six months. This isn't passive observation: social workers actively evaluate:

• Your parenting skills in practice

• Your child's adjustment to being in your care

• Whether you've maintained the changes that led to temporary restoration

• Any ongoing risks or concerns

Second Hearing: The Final Decision

About six months later, the second hearing determines whether your parental rights can be permanently restored. The court considers:

• Social services' evaluation and recommendations

• Your continued consent to take full custody

• Evidence that you've remedied the original conditions leading to termination

• Your child's preferences (especially important for teenagers)

• Your child's health, safety, and overall well-being under your care

Only if clear and convincing evidence shows you're both willing and capable will the court grant permanent restoration.

What Changed in Virginia's 2025 Legal Updates

Virginia implemented significant family law changes as of July 1, 2025, expanding restoration opportunities in several ways:

Expanded Restoration Circumstances: The 2025 updates broadened the situations where restoration might be considered, though specific details continue to be clarified through ongoing legislation.

Updated Financial Guidelines: New child support thresholds (increasing from $35,000 to $42,500 in combined gross monthly income) may affect your financial obligations once custody is restored.

Clearer Procedural Guidelines: Recent updates aim to provide more consistent statewide application of restoration procedures.

These changes reflect Virginia's evolving understanding that some terminated parental rights situations may benefit from reconsideration when circumstances truly change.

Practical Steps to Position Yourself for Success

While you can't file for restoration yourself, you can take proactive steps to demonstrate readiness if someone files on your behalf:

Document Your Rehabilitation:

• Complete recommended counseling, therapy, or treatment programs

• Maintain stable housing and employment

• Build a support network of family and friends

• Keep records of your positive changes and growth

Stay Connected Appropriately:

• Respect any existing custody or visitation orders

• Maintain appropriate communication with your child if permitted

• Work positively with social services and legal representatives

Address Original Issues:

• Identify what led to termination and take concrete steps to resolve those issues

• Seek professional help for substance abuse, mental health, or domestic violence issues

• Demonstrate sustained positive changes over time

Build Professional Relationships:

• Cooperate fully with your child's guardian ad litem

• Maintain positive relationships with social services

• Work with qualified legal counsel experienced in restoration cases

Common Challenges and How to Overcome Them

Restoration cases face predictable obstacles. Being prepared helps you address them effectively:

Time Limitations: The two-year waiting period can feel endless, but use this time productively to demonstrate consistent positive changes.

Proving Substantial Change: Courts need evidence of fundamental transformation, not just temporary improvements. Focus on long-term, sustainable changes.

Child's Resistance: Especially with teenagers, your child may have mixed feelings about restoration. Respect their perspective and don't pressure them.

System Skepticism: Professionals involved may be naturally cautious about restoration. Patience and consistent demonstration of change are key.

Moving Forward: Your Next Steps

If you believe restoration might be appropriate in your situation, start by consulting with an experienced Virginia family law attorney who understands the restoration process. They can help you:

• Assess whether your situation might qualify for restoration

• Identify which professionals might consider filing on your behalf

• Develop a strategic plan for demonstrating readiness

• Navigate the complex legal requirements and timelines

Remember, restoration of parental rights is intentionally difficult because it involves reversing a prior court determination made to protect your child. However, Virginia's legal framework does recognize that people can change and that families sometimes deserve second chances when genuine rehabilitation occurs.

The path isn't easy, but understanding Virginia's restoration laws empowers you to take meaningful steps toward potentially reuniting with your child. Every situation is unique, and professional legal guidance is essential for navigating this complex process successfully.

If you're considering pursuing parental rights restoration, don't wait to get professional guidance. The experienced family law team at Coastal Virginia Law understands the complexities of Virginia's restoration process and can help evaluate your specific situation. Contact us today to discuss your options and develop a strategic approach for your family's future.