Virginia Lawyers Weekly VA Lawyers Weekly
A mother could cut off contact between her two-year-old son and his paternal grandparents, whose own son had joint custody of the child, but who died in an auto accident when the grandson was barely two years old.
In a case it called “very sad and unfortunate,” the Court of Appeals upheld denial of the grandparents’ petition for visitation in Richter v. Manning. The case is a reminder of just how tough it is to show “actual harm” to the child from a denial of grandparent visitation.
The grandson and his mother lived with the paternal grandmother and her husband for several months, a year after the father’s death, but when the mother moved out, she decided the son could no longer see the grandparents.
A Prince William County Circuit Court denied the grandparents’ petition, after denying their Rule 4:10 motion to have the small boy examined by a licensed clinical psychologist with expertise on attachment theory.
The expert planned to observe through a one-way window while the child visited first with his grandmother, then with a stranger, then the grandmother again. The plan was “fraught with peril for the boy,” who had not seen his grandparents in a year, and might get to see them only briefly before never seeing them again, the trial judge said when he denied the motion.
At trial, the mother testified that she had moved out of the grandparents’ home after ending a romantic relationship with a relative of the paternal grandmother, who also lived in the grandparents’ home. The mother said she cut off contact after the grandmother confronted her when she tried to remove some property from the home, pursued her in a car and tried to run her off the road.
The trial court denied visitation because it found no indication the child had suffered actual harm and no basis to conclude he would suffer actual harm in the foreseeable future.
On appeal, the grandparents said it was “pure speculation” that the Rule 4:10 examination of the boy was perilous to the pre-schooler.
But the appellate panel upheld Prince William County Circuit Judge Craig D. Johnston’s conclusion that the “psychological poking and prodding” was not in the child’s best interests.
Another trial judge might see things differently, said Judge Randolph A. Beales, who wrote the court’s May 7 unpublished opinion in Richter (VLW 013-7-137(UP)), but that’s not the test for an abuse of discretion.
The “actual harm” test from the Supreme Court of Virginia’s decision in Williams v. Williams, 256 Va. 19 (1998), sets a high bar for grandparents who seek visitation over the objection of a fit parent. Coupled with appellate review under an abuse of discretion standards, grandparents face an uphill battle unless they can win in the trial court.
Without expert observation of the child’s interaction with the grandmother, the Richter grandparents had to rely on the expert’s general testimony on “attachment” and records from the child’s pediatrician and pre-school, which failed to make their case.
Since the 1998 plurality opinion in Williams, grandparents seeking to maintain family ties after the death of an adult child have figured in several cases.
A Spotsylvania County Circuit Court ordered visitation in a 1999 case, Decatur v. Eskam (VLW 099-8-287), for paternal grandparents whose son had died, saying the grandparents met the “actual harm” standard because they had been an integral part of the child’s live.
But the appeals court upheld denial of a maternal grandmother’s petition for visitation in a 2003 case from Chesterfield County Circuit Court, O’Leary v. Moore (VLW 003-7-324(UP)).
In 2008, the appellate court upheld scheduled visitation for a maternal grandmother with a four-year-old girl whose mother died shortly after the girl’s birth, as in the child’s best interests. The panel said in Wise v. Velasquez (VLW 008-7-470), that visitation allowed the child to become an integral part of her deceased mother’s family. The father apparently had allowed some visitation, but objected to court-ordered visitation as interference with his family’s schedule.
Fairfax lawyer William L. Schmidt, who represented the grandparents in Richter, could not be reached for comment.
