Denying visitation petition would not harm child

Even though petitioner is a “person with a legitimate interest” in visitation with respondent’s minor child, the visitation petition is denied.

For a court to award a non-parent visitation over a parent’s objection, there must be clear and convincing evidence that denying visitation would be harmful or detrimental to the child’s welfare.

Petitioner has not provided such evidence.

Overview

The child resides with respondent, his biological mother. The child’s biological father did not initially have a relationship with son but does now and concurs with respondent regarding visitation.

Petitioner is not a family member of the child, is not related by blood or marriage, has never been the child’s stepparent and has not become his adoptive father. Petitioner and respondent were never married, nor did they live together.

Petitioner and respondent “had a sporadic relationship beginning in 2010.” This continued after the child was born in October 2011. Petitioner was involved with the child’s life until February 2012 when the parties broke off their relationship.

The relationship and petitioner’s involvement with the child resumed in the summer of 2012. Petitioner provided babysitting on a regular schedule. The parties broke off in January 2014 but resumed the relationship on the same schedule until ending it permanently in March 2018 “due to concerns regarding [the child’s] well-being and behavior.”

The only other contact between petitioner and the child occurred on March 29, 2019, for a court-ordered assessment by Dr. Chiglinsky.

Relevant law

Under Code § 20-124.2, “a trial court may ‘upon a showing by clear and convincing evidence that the best interests of the child would be served thereby award custody or visitation to any other person with a legitimate interest.” The term “person with a legitimate interest” should be “broadly construed.”

Further, parents have a fundamental right to make decisions regarding the care, custody and control of their children. If a fit parent objects to visitation, there must be clear and convincing evidence that denying visitation would be harmful or detrimental to the child’s welfare.

When a fit parent objects to non-parent visitation, under Williams v. Williams, 256 Va. 19 (1998), “a trial court should apply the ‘best interests’ standard in determining visitation only after it finds harm if visitation is not ordered.”

To find actual harm, the evidence must show more than “some measure of sadness and a sense of loss” from losing a “continuing emotional attachment with the non-parent.”

Application

Petitioner was involved with the child over seven years with only a six-month break in 2012 and four-month break in 2014. This qualifies petitioner as a “person with a legitimate interest” to petition for visitation.

Petitioner produced testimony from Dr. Chiglinsky, who evaluated the child. The evidence “is not enough for this Court to believe [the child] will suffered actual harm by not having visitation with [petitioner]. Dr. Chiglinsky’s opinions “are speculation based on his observations” of two interactions with petitioner and the child. Only one interaction was with petitioner and the child together.

“Dr. Chiglinsky repeatedly stated that there was severe potential to cause harm, not that actual harm has occurred. As such, his opinions are insufficient. In addition, the opinions developed by Dr. Chiglinsky were developed by [petitioner’s] interpretation of the situation without speaking with other members of [the child’s] immediate family, namely his biological mother, father or maternal grandparents.” Dr. Chiglinsky only spent “approximately two and a half hours” with the child.

“Dr. Chiglinsky’s testimony does not show by clear and convincing evidence” that the child will suffer actual harm if the visitation petition is denied.

Further, the child’s counselor and a health care professional have spent numerous hours over several years with the child. Both testified that the child has “suffered no ill effects from his lack of contact” with petitioner, that the child’s behavior was getting better and that it “would be a harmful setback” if the child had visitation with petitioner.

Respondent testified that the child has “done better” in the year since visitation with petitioner was discontinued and had “not expressed an interest” in seeing petitioner during that time. She also testified she did not want the child to spend time with petitioner and that visitation would be “harmful.”

The court finds after considering all the testimony that “no actual harm will come to [the child] by denying visitation to [petitioner.]” As a result, the court does not need to undertake a best-interests analysis.

The petition is denied. The court grants respondent $8,000 in attorney’s fees.

Bronson v. Lane. CJ-18-82 Oct. 24, 2019; Roanoke Cir. Ct. (Dorsey) Vickie L. Francois, Victor S. Skaff III, Diana Perkinson for the parties. VLW 019-8-099, 5 pp.