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WILLIAMS v. WILLIAMS, ET AL.


WILLIAMS v. WILLIAMS, ET
AL.


June 5, 1998

Record No. 971616

THOMAS O. WILLIAMS, III,ET AL.

v.

THOMAS O. WILLIAMS, IV, ET AL.

OPINION BY JUSTICE A. CHRISTIAN COMPTON

FROM THE COURT OF APPEALS OF VIRGINIA

Present: All the Justices


This is a dispute between the parents of a child in an intact
family unit and the child’s paternal grandparents over the
grandparents’ right of visitation with the child.

Appellees Thomas O. Williams, IV, and Sarah Hasty Williams,
husband and wife who reside together, are the natural parents of
a daughter born on March 9, 1991. Appellants Thomas O. Williams,
III, and Frances S. Williams are the child’s paternal
grandparents, who reside near the parents in Blacksburg.

The child’s family is intact. There is no evidence of parental
abuse or neglect. The parents are respected members of the
community in which they live. They are mentally, physically, and
morally fit, and are capable of meeting their daughter’s
financial, educational, moral, and social needs.

The parents and grandparents maintained regular contact until
February 1994 when the parents announced to the grandparents,
after consulting with a North Carolina "counselor,"
that they were "detaching" or withdrawing from the
relationship which previously existed with the grandparents.

Eventually, the grandparents filed a petition seeking
visitation with their granddaughter. The Montgomery County
Juvenile and Domestic Relations District Court and, on appeal,
the Circuit Court of Montgomery County ordered visitation.

The circuit court decided that the child would "benefit
from contact with her grandparents"; that such visitation
would not interfere with the child’s health or emotional
development; that such visitation "is a minimal intrusion
into the family unit"; that the grandparents "obviously
love" the child and "have the ability to adequately
care for her"; and that the child’s best interests would be
served by having visitation with her grandparents.

On appeal to the Court of Appeals, the parents asserted that
Code Sec.20-124.2(B), as it pertains to nonparent visitation,
interferes with their right to autonomy in child rearing and,
hence, violates the Fourteenth Amendment to the United States
Constitution. The statute permits grandparents, and others, to
seek visitation.

As pertinent here, the statute provides: "The court shall
give due regard to the primacy of the parent-child relationship
but may upon a showing by clear and convincing evidence that the
best interest of the child would be served thereby award custody
or visitation to any other person with a legitimate
interest." Code Sec.20-124.1 provides that the term
"person with a legitimate interest" is to be
"broadly construed and includes, but is not limited to
grandparents, stepparents, former stepparents, blood relatives
and family members."

The Court of Appeals held there is no constitutional problem
in the applicable statutes. In so ruling, the appellate court
concluded that the right of parents in raising their child is a
fundamental right protected by the Fourteenth Amendment. Williams
v. Williams, 24 Va. App. 778, 783, 485 S.E.2d 651, 654
(1997). The Court of Appeals further decided that state
interference with a fundamental right must be justified by a
compelling state interest, and that to constitute a compelling
interest, "state interference with a parent’s right to raise
his or her child must be for the purpose of protecting the
child’s health or welfare." Id.

The Court of Appeals then interpreted Code Sec.20-124.2(B)
to permit the state to interfere with the right of parents to
raise their child by allowing a court to order nonparent
visitation upon a showing by clear and convincing evidence that
the best interests of the child would be served by such
visitation. Id. at 784, 485 S.E.2d at 654. However, the
Court of Appeals said that the language in the foregoing statute
that a court "shall give due regard to the primacy of the
parent-child relationship," evinces the General Assembly’s
intent to require the court to find that a denial of nonparent
visitation would be detrimental to the child’s welfare before the
court may interfere with the constitutionally protected parental
rights. Id.

In other words, the Court of Appeals said, "For the
constitutional requirement to be satisfied, before visitation can
be ordered over the objection of the child’s parents, a court
must find an actual harm to the child’s health or welfare without
such visitation." Id. at 784-85, 485 S.E.2d at 654. A
court reaches consideration of the "best interests"
standard in determining visitation only after it finds harm if
visitation is not ordered. Id. at 785, 485 S.E.2d at 654.

The Court of Appeals held that the circuit court failed to
make the required finding of harm if visitation were denied,
reversed the circuit court, and remanded the case for
reconsideration of visitation in accord with the standard it set
forth. Id.

We agree with the Court of Appeals’ discussion holding there
is no constitutional infirmity in the applicable statutes and
with that court’s interpretation, as we have summarized it,
placed upon the statutes. We do not agree, however, that the case
should be remanded to the circuit court; a remand is unnecessary.
There is no allegation or proof that denial of grandparent
visitation would be detrimental to this child’s welfare, and no
further consideration of that issue at this stage of the
proceeding is warranted.

Consequently, we will modify the Court of Appeals’ judgment to
eliminate the requirement of a remand and will affirm the
judgment as modified. In so doing, we will deny the grandparents’
petition for visitation and will dismiss the proceeding.

Modified, affirmed, and dismissed.

 

JUSTICE HASSELL, with whom JUSTICE KINSER joins, dissenting in
part and concurring in result.

I.

I dissent, in part, because I believe that Code
Sec.20-124.2(B), as applied in this proceeding, violates the
Fourteenth Amendment of the United States Constitution. I note
that only three members of this Court agree with the judgment of
the Court of Appeals as modified.

II.

Code Sec.20-124.2(A) states in part:

"In any case in which custody or visitation of
minor children is at issue, whether in a circuit or
district court, the court shall provide prompt
adjudication, upon due consideration of all the facts, of
custody and visitation arrangements, including support
and maintenance for the children, prior to other
considerations arising in the
matter. . . . The procedures for
determining custody and visitation arrangements shall
insofar as practical, and consistent with the ends of
justice, preserve the dignity and resources of family
members."

Code Sec.20-124.2(B), which is the subject of this appeal,
states:

"In determining custody, the court shall give
primary consideration to the best interests of the child.
The court shall assure minor children of frequent and
continuing contact with both parents, when appropriate,
and encourage parents to share in the responsibilities of
rearing their children. As between the parents, there
shall be no presumption or inference of law in favor of
either. The court shall give due regard to the primacy of
the parent-child relationship but may upon a showing by
clear and convincing evidence that the best interest of
the child would be served thereby award custody or
visitation to any other person with a legitimate
interest. The court may award joint custody or sole
custody."

III.

A.

The grandparents initiated this proceeding by filing a
petition, pursuant to Code Sec.16.1-241(A)(3), in the
Montgomery County Juvenile and Domestic Relations District Court.
The grandparents requested that the court enter an order
permitting them to obtain visitation with their granddaughter.
The parents opposed the visitation petition.

The juvenile and domestic relations district court conducted
an ore tenus hearing and entered an order requiring that
the parents and grandparents participate in counseling "to
promote healing within the family and improved communication
. . . for the benefit of [the granddaughter], among
others" and directed the counselor to report to the court
within 45 days. The court also ordered that the
"grandparents shall have visitation every other Saturday
from 10:00 a.m., until 6:00 p.m. . . and every other
Thursday from 3:00 p.m., until 6:00 p.m." Subsequently, the
court conducted another ore tenus hearing and entered a
final order which granted the grandparents visitation and
required the parents and grandparents to participate in joint
family counseling through the court service unit of the juvenile
and domestic relations district court.

B.

The parents appealed the juvenile and domestic relations
district court’s order to the circuit court. The parents filed a
motion to dismiss the grandparents’ petition asserting, among
other things, that Code Sec.20-124.2(B) violates the parents’
constitutional rights, conferred by the Fourteenth Amendment of
the United States Constitution, to raise their child as they deem
appropriate.

The circuit court conducted an ore tenus hearing and
found that the granddaughter’s "family is intact. [There is
no] evidence of parental abuse or neglect; [the parents] are
respectable members of their community; [the parents] are
mentally, physically, and morally fit; and [the parents] are
capable of meeting [the granddaughter's] financial, educational,
moral, and social needs."

The circuit court also found that: "[t]he grandparents
are mentally, physically, and morally fit; [the grandparents] are
responsible, mature, and respected members of their community;
. . . [the granddaughter] will benefit from contact
with her grandparents, [who live] only one block apart [from
her]; . . . grandparent visitation will not interfere
with [the granddaughter's] health or emotional development; and
. . . [t]he grandparents obviously love [their
granddaughter] and have the ability to adequately care for
her." The circuit court rejected the parents’ constitutional
claim, and entered a final judgment awarding the grandparents
visitation with their granddaughter for 10 hours per week.

C.

The parents appealed the judgment of the circuit court to the
Court of Appeals of Virginia and reasserted their constitutional
challenge. The Court of Appeals held that the parents’ autonomy
in child rearing is a fundamental right protected by the
Fourteenth Amendment of the United States Constitution and that
state interference with that right must be justified by a
compelling state interest. The Court of Appeals concluded that
Code Sec.20-124.2(B) is constitutionally permissible because
the statute implicitly requires a finding that a denial of
visitation would be harmful or detrimental to the grandchild. The
Court of Appeals remanded the proceeding to the circuit court so
that it could make such findings. Williams v. Williams,
24 Va. App. 778, 784-85, 485 S.E.2d 651, 654 (1997). The
grandparents appeal, and the parents assign cross-error to the
Court of Appeals’ judgment.

IV.

This Court directed the litigants to brief the issue whether
the circuit court had subject matter jurisdiction to award
visitation to the grandparents even though custody of the child
is not at issue between the parents. The grandparents, relying
upon Code Sec.16.1-241, argue that the circuit court did have
subject matter jurisdiction to adjudicate this proceeding. The
parents respond that a court may consider visitation by
non-parents only in the context of a custody dispute which is
otherwise before the court. I disagree with the parents.

As the grandparents properly observe, they filed their
petition in the juvenile and domestic relations district court,
invoking that court’s jurisdiction under Code Sec.16.1-241.
This statute states in relevant part:

"[E]ach juvenile and domestic relations district
court shall have . . . jurisdiction
. . . over all cases, matters and proceedings
involving:

"A. The custody, visitation, support, control or
disposition of a child:

 

. . .

"3. Whose custody, visitation or support is a
subject of controversy or requires determination. In such
cases jurisdiction shall be concurrent with and not
exclusive of courts having equity jurisdiction, except as
provided in Sec.16.1-244;

 

. . .

"The authority of the juvenile court to
adjudicate matters involving the custody, visitation,
support, control or disposition of a child shall not be
limited to the consideration of petitions filed by a
mother, father or legal guardian but shall include
petitions filed at any time by any party with a
legitimate interest therein. A party with a legitimate
interest shall be broadly construed and shall include,
but not be limited to, grandparents, stepparents, former
stepparents, blood relatives and family
members. . . . Code
Sec.16.1-241.

Code Sec.16.1-296,[1] in effect on the date that the
parents perfected their appeal from the juvenile and domestic
relations district court to the circuit court, stated in relevant
part:

"A. From any final order or judgment of the
juvenile court affecting the rights or interests of any
person coming within its jurisdiction, an appeal may be
taken within ten days from the entry of a final judgment,
order or conviction.

"I. In all cases on appeal, the circuit court in
the disposition of such cases shall have all the powers
and authority granted by the chapter to the juvenile and
domestic relations district court."

Applying these statutes, I would hold that the juvenile and
domestic relations district court and the circuit court had
subject matter jurisdiction to adjudicate the issues raised in
this proceeding and that the grandparents have a statutory right
to file a petition seeking visitation privileges. Code
Sec.16.1-241(A) confers broad jurisdiction upon the juvenile
and domestic relations district courts to adjudicate visitation
issues. Code Sec.16.1-241(B) grants the juvenile and domestic
relations district courts jurisdiction of petitions which require
visitation determinations. Indeed, the General Assembly
specifically mandated in Section (B) of this statute that the
authority of the juvenile court to adjudicate matters involving
visitation shall not be limited to consideration of petitions
filed by parents, but that any party with a legitimate
interest, including grandparents, may file such petitions. Code
Sec.16.1-296(A) permits a party to appeal any final order or
judgment of the juvenile court affecting the rights or interests
of "any person coming within" the juvenile court’s
jurisdiction to the circuit court. And, Code Sec.16.1-296(I)
grants the circuit court the power and authority granted by
Chapter 4.1 of Title 16.1 of the Code to the juvenile and
domestic relations district courts.

Furthermore, in West v. King, 220 Va. 754,
756-57, 263 S.E.2d 386, 387 (1980), we held that Code
Sec.16.1-241, as it existed in 1977, did not vest a juvenile
court, and, hence, a circuit court on appeal, with jurisdiction
to order grandparent visitation over the objection of a child’s
custodial parent. The General Assembly subsequently amended Code
Sec.16.2-241, specifically granting jurisdiction to the
juvenile and domestic relations district court to consider
visitation petitions filed by grandparents.

I observe that today, all seven members of this Court agree
that the juvenile and domestic relations district court and the
circuit court had jurisdiction to adjudicate the grandparents’
petition, and five justices agree that the grandparents have a
statutory right to file a petition seeking visitation privileges.
Only Justices Keenan and Koontz believe that the grandparents
have no statutory right to file a visitation petition on the
particular facts in this proceeding.

V.

A.

The grandparents argue that Code Sec.20-124.2(B) does not
contravene the Fourteenth Amendment of the United States
Constitution. The grandparents contend that, "although the
practical disagreement here is between parents and grandparents,
the real legal conflict is between the parents and the state. The
specific challenge is to balance . . . . the state’s
interest in protecting the granddaughter’s constitutional rights
under the First Amendment of the United States Constitution to
visit her grandparents . . . and . . . the
parents’ constitutional rights under the Fourteenth Amendment of
the United States Constitution to control [the granddaughter's] life." Continuing, the grandparents assert that Code
Sec.20-124.2 and 16.1-241 require that a court balance the
interests of the state and the interests of the parents; that the
circuit court has appropriately balanced the rights of all
parties and found by clear and convincing evidence that their
granddaughter’s best interests would be served by requiring her
to have limited visitation with her grandparents; and that the
challenged statute is constitutional. Responding, the parents
contend that Code Sec.20-124.2(B), as applied to them, is
unconstitutional because the statute infringes upon their
Fourteenth Amendment rights to conduct their family affairs free
from governmental intrusion.

B.

The Fourteenth Amendment of the United States Constitution
provides in relevant part that "[n]o state shall
. . . deprive any person of life, liberty, or property,
without due process of law . . . ." U.S.
Const. amend. XIV, Sec.1. The United States Supreme Court,
explaining the protections accorded by the Fourteenth Amendment,
has stated:

"While this Court has not attempted to define
with exactness the liberty thus guaranteed, the term has
received much consideration and some of the included
things have been definitely stated. Without doubt, it
denotes not merely freedom from bodily restraint but also
the right of the individual to contract, to engage in any
of the common occupations of life, to acquire useful
knowledge, to marry, establish a home and bring up
children, to worship God according to the dictates of his
own conscience, and generally to enjoy those privileges
long recognized at common law as essential to the orderly
pursuit of happiness by free men." Meyer v. Nebraska,
262 U.S. 390, 399 (1923).

 

The Supreme Court observed in Moore v. East
Cleveland
, 431 U.S. 494, 499 (1977), that it "has long
recognized that freedom of personal choice in matters of marriage
and family life is one of the liberties protected by the Due
Process Clause of the Fourteenth Amendment" (quoting Cleveland
Bd. of Educ.
v. LaFleur, 414 U.S. 632, 639-40 (1974)).
Additionally, the United States Supreme Court has stated its
"historical recognition that freedom of personal choice in
matters of family life is a fundamental liberty interest
protected by the Fourteenth Amendment," Santosky v. Kramer,
455 U.S. 745, 753 (1982), and that there is "a ‘private
realm of family life which the state cannot enter.’" Moore,
431 U.S. at 499 (quoting Prince v. Massachusetts,
321 U.S. 158, 166 (1944)). Accord Lassiter v. Department
of Soc. Servs.
, 452 U.S. 18, 27 (1981).

The Supreme Court of the United States has made clear that a
state may interfere with a parent’s right to raise children only
when the state acts in its police power to protect the health or
safety of the child. See Wisconsin v. Yoder,
406 U.S. 205, 230 (1972) (Amish children would not be harmed by
receiving an Amish education instead of attending public high
school); Prince, 321 U.S. at 170 (Supreme Court approved
conviction of a guardian who allowed a child to sell religious
magazines, finding a legitimate state interest in preventing
psychological or physical injury to the child); Pierce v. Society
of Sisters
, 268 U.S. 510, 534 (1925) (parents’ decisions to
send their children to private schools was not inherently harmful
to children).

Here, I am concerned with the parents’ fundamental rights to
raise their child as they deem appropriate. Therefore, any
statute which seeks to limit those rights can only be justified
by a compelling state interest, and such statute must be narrowly
drawn to express only the legitimate state interest at stake. Washington
v. Glucksberg, ___ U.S. ___, ___, 117 S.Ct. 2258, 2268
(1997); Reno v. Flores, 507 U.S. 292, 301-02
(1993). Thus, this Court must consider whether Code
Sec.20-124.2(B), as applied in this case, requires a finding
of a compelling state interest before a court can interfere with
the parents’ fundamental rights to raise their child by awarding
visitation to the grandparents over the parents’ objections.

VI.

A.

The language contained in Code Sec.20-124.2(B) is clear
and unambiguous and, therefore, I would look no further than the
plain meaning of the language contained in the statute to
ascertain its meaning. Supinger, 255 Va. at 205-206, 495
S.E.2d at 817; City of Winchester v. American Woodmark
Corp.
, 250 Va. 451, 457, 464 S.E.2d 148, 152 (1995). This
Court has stated:

"’While in the construction of statutes the
constant endeavor of the courts is to ascertain and give
effect to the intention of the legislature, that
intention must be gathered from the words used, unless a
literal construction would involve a manifest absurdity.
Where the legislature has used words of a plain and
definite import the courts cannot put upon them a
construction which amounts to holding the legislature did
not mean what it has actually expressed.’" Barr
v. Town & Country Properties, Inc., 240 Va.
292, 295, 396 S.E.2d 672, 674 (1990) (quoting Watkins
v. Hall, 161 Va. 924, 930, 172 S.E. 445, 447
(1934)); accord Supinger, 255 Va. at
206-07, 495 S.E.2d at 817-18; Haislip v. Southern
Heritage Ins. Co.
, 254 Va. 265, 268-69, 492 S.E.2d
135, 137 (1997); Abbott v. Willey, 253 Va.
88, 91, 479 S.E.2d 528, 530 (1997); Weinberg v. Given,
252 Va. 221, 225-26, 476 S.E.2d 502, 504 (1996).

B.

In making visitation determinations, a juvenile and domestic
relations district court must comply with the statutes contained
in Title 20, Chapter 6.1 of the Code, which is entitled,
"Custody and Visitation Arrangements for Minor
Children."[2] This chapter contains numerous statutes which
relate to custody and visitation. Code Sec.20-124.1, which is
contained in Chapter 6.1, makes clear that grandparents and
certain other non-parents, are deemed to have a statutory
interest in child visitation.[3]

Code Sec.20-124.2 is entitled "Court-Ordered Custody
and Visitation Arrangements." Code Sec.20-124.2(B)
authorizes a court to award visitation to a non-parent with a
legitimate interest. Code Sec.20-124.2(B) also establishes
the standard that a court must apply when making a visitation
determination. The court’s determination must be based upon a
showing by clear and convincing evidence that the best interests
of the child would be served by an award of visitation.

Code Sec.20-124.3, which establishes the factors that the
court shall consider when applying the best interests of the
child standard, states in part:

"Sec.20-124.3. Best interests of the child.
— In determining best interests of a child for purposes
of determining . . . visitation arrangements
. . . the court shall consider the following:

"1. The age and physical and mental condition of
the child, giving due consideration to the child’s
changing developmental needs;

"2. The age and physical and mental condition of
each parent;

"3. The relationship existing between each parent
and each child, giving due consideration to the positive
involvement with the child’s life, the ability to
accurately assess and meet the emotional, intellectual
and physical needs of the child;

"4. The needs of the child, giving due
consideration to other important relationships of the
child, including but not limited to siblings, peers and
extended family members;

"5. The role which each parent has played and
will play in the future, in the upbringing and care of
the child;

"6. The propensity of each parent to actively
support the child’s contact and relationship with the
other parent, the relative willingness and demonstrated
ability of each parent to maintain a close and continuing
relationship with the child, and the ability of each
parent to cooperate in matters affecting the child;

"7. The reasonable preference of the child, if
the court deems the child to be of reasonable
intelligence, understanding, age and experience to
express such a preference;

"8. Any history of family abuse as that term is
defined in Sec.16.1-228; and

"9. Such other factors as the court deems
necessary and proper to the determination."

None of the factors which a court must consider in Code
Sec.20-124.2 and -124.3 when determining visitation
requires that a court make a finding of any type of harm to a
child’s health or safety. The standard, "best interests of
the child," does not require the state to exercise its
police power to protect the health or safety of a child. Rather,
this comparative standard requires a court to make determinations
about what may be most beneficial to a child. Undoubtedly, most
children would benefit by experiencing a close and loving
relationship with caring grandparents. And, such relationship may
certainly be in a child’s best interests. However, I cannot
conclude that the absence of such relationship in this case would
affect the granddaughter’s health or safety.

As the record demonstrates, Code Sec.20-124.2 permits a
court to intrude upon the parents’ fundamental rights to raise
their child even though the circuit court made a factual finding
that the parents are mentally, physically and morally fit, that
they are capable of meeting the child’s financial, educational,
moral and social needs, and there is no evidence of parental
abuse or neglect. The plain language of this statute permits the
state to infringe upon the parents’ rights to raise their child
by authorizing a court to mandate, against the parents’ wishes,
those persons with whom the child shall associate.

In essence, Code Sec.20-124.2, as applied in this
proceeding, permits the government to impose its views regarding
how a child should be raised upon a child’s parents, even though
such decisions are parental choices protected by the parents’
fundamental rights emanating from the Fourteenth Amendment. Code
Sec.20-124.2, as applied here, is constitutionally deficient
because it does not require that a court, in awarding visitation
to the grandparents, make a determination that such visitation is
necessary to protect the safety or health of the child.[4]

C.

The Court of Appeals, and the plurality’s opinion, concluded
that Code Sec.20-124.2(B) is constitutional because the
General Assembly purportedly intended that a circuit court make a
finding that "a denial of visitation would be harmful or
detrimental to the welfare of the child, before interfering with
the constitutionally protected parental rights of the child
involved." In reaching this conclusion, the Court of Appeals
and the plurality rely upon the following language in Code
Sec.20-124.2(B) which requires that a court "shall give
due regard to the primacy of the parent-child relationship"
when making visitation determinations. I disagree with the
plurality opinion and the Court of Appeals.

The plain language contained in Code Sec.20-124.2(B) is
devoid of any words which require a court to make a finding of
harm to a child before granting visitation rights to a
grandparent over a parent’s objection. The statutory language
that a court "shall give due regard to the primacy of the
parent-child relationship" simply is not equivalent to the
constitutional requirement that a court make a finding of a
compelling state interest before interfering with a parent’s
fundamental right to raise a child. Thus, the plurality opinion
amends Code Sec.20-124(B) by adding additional language to
the statute. I cannot infer a legislative intent that is not
evident in the clear and unambiguous language of Code
Sec.20-124.2(B) because to do so would permit the judicial
branch of government to usurp the prerogatives of the legislative
branch of government by rewriting a statute and, thus, giving
that statute a construction that was not manifested by the plain
language that the General Assembly chose to use.

VII.

For these reasons, I would hold that Code Sec.20-124.2(B)
is unconstitutional as applied because the statute permits the
Commonwealth to interfere with the parents’ fundamental rights to
raise their child even though the statute does not require the
court to make a finding that the failure to award visitation over
the parents’ objections would be detrimental to the health or
safety of the child. Accordingly, I would enter an order in favor
of the parents, declaring that Code Sec.20-124.2(B) is
unconstitutional as applied in this proceeding.

JUSTICE KOONTZ, with whom JUSTICE KEENAN joins, dissenting,
and concurring in result.

In my view, the dispositive issue in this case is whether the
juvenile and domestic relations district court, and thereafter
the circuit court on appeal, had the statutory authority to
consider a petition by grandparents seeking court-ordered
visitation with their grandchild over the united objections of
the child’s parents. The record reflects that the parents
have an intact marriage, are capable of meeting the child’s
financial, educational, moral, and social needs, and there is no
allegation of parental abuse, neglect, or abandonment. In my
view, in this specific factual context the pertinent statutory
scheme for resolving child visitation disputes does not provide a
right to the grandparents to seek visitation, and, accordingly,
does not provide authority to the courts to consider their
petition. Thus, I would not reach the constitutional issue
presented in this appeal.

Initially, I would note that the statutory scheme for
resolving visitation suits invoked by this case applies with
equal force in the circuit court on appeal and in the juvenile
and domestic relations district court from which the appeal
arises. See Code Sec.20-124.2 (expressly applicable to
visitation suits whether in the circuit court or the district
court); Code Sec.16.1-296(I)(on appeal, circuit court has all
powers and authority granted to juvenile and domestic relations
district court). Because the petition in this case was originally
filed in the juvenile and domestic relations district court, I
begin my analysis with consideration of Code Sec.16.1-241,
which provides the general jurisdiction for that court. In
pertinent part, this statute provides that:

[E]ach juvenile and domestic relations district court
shall have . . . exclusive original
jurisdiction . . . over all cases, matters and
proceedings involving:

 

A. The custody, visitation, support, control or
disposition of a child:

1. Who is alleged to be abused [or] neglected
. . .

2. Who is abandoned by his parent or other custodian
or who . . . is without parental care and
guardianship;

2a. Who is at risk of being abused or neglected by a
parent or custodian . . .

3. Whose custody, visitation or support is a
subject of controversy or requires determination
;

. . .

The authority of the juvenile court to adjudicate
matters involving the custody, visitation, support,
control or disposition of a child shall not be limited to
the consideration of petitions filed by the mother,
father or legal guardian but shall include petitions
filed at any time by any party with a legitimate interest
therein. A party with a legitimate interest shall be
broadly construed and shall include, but not be limited
to, grandparents, stepparents, former stepparents, blood
relatives and family members.

(Emphasis added.)

Code Sec.16.1-278.15 provides the dispositional authority
of the juvenile and domestic relations district court in
visitation suits in which that court has jurisdiction under Code
Sec.16.1-241. In pertinent part, Code Sec.16.1-278.15
provides in subsection (A) that in cases involving the visitation
of a child pursuant to Code Sec.16.1-241(A)(3), "the
court may make any order of disposition to protect the welfare of
the child and family as may be made by the circuit court."
Subsection (B) further provides that in "any case involving
the custody or visitation of a child, the court may award custody
upon petition to any party with a legitimate interest therein,
including . . . grandparents."

In express terms, Code Sec.16.1-241 provides a broad
legislative grant of jurisdiction for the juvenile and domestic
relations district court to consider visitation matters, and Code
Sec.16.1-278.15 provides the dispositional authority for that
court to award visitation to any party with a legitimate
interest, including a grandparent. However, these code sections
do not create any right in the grandparents, or in any other
"party with a legitimate interest" to visitation. Such
rights did not exist at common law, West v. King, 220 Va.
754, 756, 263 S.E.2d 386, 387 (1980), nor can they be acquired
inferentially. Cf. Johnson v. Johnson, 224 Va. 641,
645, 299 S.E.2d 351, 353 (1983). Rather, being in derogation of
the common law, the right of the grandparents, or any other party
with a legitimate interest, to visitation of a child over the
united objections of two fit parents must be conferred expressly
by statute. Cf. Wackwitz v. Roy, 244 Va. 60, 65,
418 S.E.2d 861, 864 (1992).

To the extent that the grandparents, as parties with a
legitimate interest, have a right to visitation, such right is
granted by Code Sec.20-124.2 which expressly addresses
"[c]ourt-ordered custody and visitation arrangements."
Code Sec.20-124.2(A) provides in pertinent part that:

In any case in which custody or visitation of minor
children is at issue, whether in a circuit or district
court, the court shall provide prompt adjudication, upon
due consideration of all the facts, of custody and
visitation arrangements, including support and
maintenance for the children, prior to other
considerations arising in the matter. The court may enter
an order pending the suit . . . .

Code Sec.20-124.2(B) provides in pertinent part that:

In determining custody, the court shall give primary
consideration to the best interests of the child. The
court shall assure minor children of frequent and
continuing contact with both parents, when appropriate,
and encourage parents to share in the responsibilities of
rearing their children. As between the parents, there
shall be no presumption or inference of law in favor of
either. The court shall give due regard to the primacy of
the parent-child relationship but may upon a showing by
clear and convincing evidence that the best interest of
the child would be served thereby award custody or
visitation to any other person with a legitimate
interest.

Code Sec.20-124.1 provides that the term "‘Person
with a legitimate interest
’ shall be broadly construed
and includes, but is not limited to grandparents . . . provided
any such party has intervened in the suit or is otherwise
properly before the court
." (Second emphasis added.)

The limiting phrase "provided any such party has
intervened in the suit or is otherwise properly before the
court" in Code Sec.20-124.1 impacts the scope of both
the provisions of Code Sec.20-124.2(B) and the provisions of
Code Sec.16.1-241. This phrase expressly limits the
circumstances under which Code Sec.20-124.2(B) grants the
grandparents the right to visitation and, thus, the circumstances
under which Code Sec.16.1-241 provides jurisdiction for the
court to consider their petition for visitation. Moreover,
because the common law did not recognize the right of a
grandparent to visitation with a grandchild, this statutory
scheme must be strictly applied and not "enlarged in [its] operation by construction beyond [its] express terms." C. & O.
Railway v. Kinzer
, 206 Va. 175, 181, 142 S.E.2d 514, 518
(1965); see also Bradick v. Grumman Data Systems
Corporation
, 254 Va. 156, 160, 486 S.W.2d 545, 547 (1997); Hyman
v. Glover
, 232 Va. 140, 143, 348 S.E.2d 269, 271 (1986)
(General Assembly’s intent to abrogate common law will be
"plainly manifested" in the language of a statute).

Here, the grandparents, as persons with a legitimate interest,
are not intervenors in an existing custody or visitation suit
between the parents, nor do they assert parental unfitness,
evidenced by abuse, neglect, or abandonment, so as to qualify as
parties otherwise properly before the court under Code
Sec.16.1-241(A)(1), (2), and (2a).[5] Thus,
only if Code Sec.20-124.2(B) is construed without giving any
effect to the limiting language of Code Sec.20-124.1, would
the court have had statutory authority to award visitation to the
grandparents under the specific circumstances of this case, where
two fit parents are united in their objections to that
visitation. However, the limiting language of Code
Sec.20-124.1 suggests that the legislature intended to limit
the right of grandparents, and other parties with a legitimate
interest, to seek visitation only when that issue would otherwise
be properly before the court and not when the grandchild is in
the custody of two fit, natural parents in an intact marriage who
are united in their objections to visitation by the grandparents.

This conclusion is further bolstered by the language in Code
Sec.16.1-241(A)(3) that provides statutory authority to the
court over suits involving a child whose visitation "is a
subject of controversy or requires determination,"
suggesting a consistency with the language of Code
Sec.20-124.1. I am aware of no prior case in which we have
recognized the broad and unlimited right of visitation over
parental objection asserted by the grandparents in this case, and
I would decline to do so now.

Accordingly, I would hold that the juvenile and domestic
relations district court had no statutory authority to grant
visitation to the grandparents under their petition because Code
Sec.20-124.2(B) does not provide a right of visitation to the
grandparents under the circumstances in this case. For these
reasons, I would reverse the trial court’s judgment and
dismiss the grandparents’ petition.

Code Sec.16.1-296 was subsequently amended, but those
amendments do not affect the disposition of this appeal.

If the judgment of the juvenile and domestic relations
district court is subsequently appealed to a circuit court, which
considers the request for visitation de novo, the circuit
court must also apply the statutes contained in this Chapter.

Code Sec.20-124.1 states in relevant part: "’[p]erson
with a legitimate interest
‘ shall be broadly construed and
includes, but is not limited to grandparents, stepparents, former
stepparents, blood relatives and family members provided any such
party has intervened in the suit or is otherwise properly before
the court. The term shall be broadly construed to accommodate the
best interest of the child."

I am of the opinion that Code Sec.20-124.2(B) is
unconstitutional as applied as opposed to unconstitutional
facially because there may be factual circumstances when
application of the statute as written would be constitutionally
permissible. For example, a court should apply the best interest
of the child standard in a visitation dispute between natural
parents of a child.

FOOTNOTES:

[1] Code Sec. 16.1-296 was subsequently
amended, but those amendments do not affect the disposition of this appeal.

[2] If the judgment of the juvenile and domestic
relations district court is subsequently appealed to a circuit court, which
considers the request for visitation de novo, the circuit court must
also apply the statutes contained in this Chapter.

[3] Code Sec. 20-124.1 states in relevant
part: “‘[p]erson with a legitimate interest’ shall be broadly construed
and includes, but is not limited to grandparents, stepparents, former
stepparents, blood relatives and family members provided any such party
has intervened in the suit or is otherwise properly before the court.
The term shall be broadly construed to accommodate the best interest of the child.”

[4] I am of the opinion that Code Sec. 20-124.2(B)
is unconstitutional as applied as opposed to unconstitutional facially because
there may be factual circumstances when application of the statute as written
would be constitutionally permissible. For example, a court should
apply the best interest of the child standard in a visitation dispute between
natural parents of a child.

[5] It cannot be disputed that
under the common law of this Commonwealth grandparents can file a
petition for custody of a child upon an allegation of parental
unfitness. See Bottoms v. Bottoms, 249 Va. 410,
413-414, 457 S.E.2d 102, 104 (1995).

 

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