Grandparents’ visitation petition dismissed

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Where grandparents have petitioned for visitation with their grandchildren, the petition is denied. The standard for adjudicating the petition, Code § 20-124.2(B2), does not include a constitutionally required showing that the grandchildren will suffer “actual harm” without the visitation.

Statement of the case

“This case presents a dispute between a mother, who is both a fit and sole surviving parent of her three minor children, and the children’s paternal grandparents as to whether the grandparents may be awarded visitation with the children over mother’s objection.

“Grandparents’ position based on a plain reading of Code § 20-124.2(B2) that such visitation may be awarded under a best interest of the child standard, without imposition of a predicate actual harm standard, cannot, in this Court’s opinion, withstand constitutional scrutiny under appliable case law.

“Subsection (B2), as applied here, violates mother’s fundamental substantive due process rights under the Fourteen Amendment by permitting an award of visitation to grandparents upon evidence of less than actual harm to the children without the visitation.”

Analysis

“By its plain language, Code § 20-124.2(B2) permits a trial court to award visitation of a minor grandchild to a grandparent if two requirements are met.

First, the court must find by a ‘preponderance of the evidence’ that the child’s deceased or incapacitated parent, who is related to the petitioning grandparent, had consented to the child’s visitation with the grandparent. …

“Second, the trial court must then determine whether such visitation is in the ‘best interest’ of the child. … This statutory provision thus creates a subset of petitioning nonparents for court-ordered visitation.

“The provision is limited to those who seek visitation with their minor grandchild and are parents of that child’s deceased or incapacitated parent, as presented here, where the child’s deceased father was the son of the petitioning nonparents, i.e., the paternal grandparents.

“What the provision does not do is differentiate in its application based on the custodian of the child at the time of the action, whether that be the child’s surviving parent or anyone else.

“Unlike subsection (B) of the statute, subsection (B2) does not include the directive that ‘[t]he court shall give due regard to the primacy of the parent-child relationship.’ … This language served to preserve subsection (B) under the Williams Court’s [Williams v. Williams, 356 Va. 19 (1998)] constitutional scrutiny. …

“[T]he Court held that this language evinced the legislature’s intent that the actual harm standard be applied as a predicate for awarding nonparent visitation — that is, ‘before the court may interfere with the constitutionally protected parental rights.’ …

“Because the legislature did not include this language in subsection (B2), such intent cannot be implied with the passage of this plainly worded provision.

“This Court must therefore infer that upon amending Code § 20-124.2 by the passage of subsection (B2) the legislature intended to exclude the actual harm standard established in Williams for the subset of grandparents included within its scope who are petitioning for child visitation.

“The Court further infers that, in doing so, the legislature intended to provide these grandparents with the benefit of the same rule established in Dotson [Dotson v. Hylton, 29 Va. App. 635 (1999)] (requiring application of only the best interest of the child standard) in cases, among others, where the grandparents’ petitions are filed against a fit and surviving parent of the child.”

Anomalous scheme

“Accordingly, under the plain language of Code§ 20-124.2(82), a fit and surviving parent who objects to his or her child’s visitation with the petitioning grandparents, as here, is confronted with an anomalous statutory scheme for adjudicating a dispute over nonparental visitation.

“The dispute is effectively between the parent and the grandparents as surrogates for the purported wishes of the deceased parent under a best interest of the child standard.

“As such, the grandparents’ legal status in the dispute is essentially put on par with that of the surviving parent if the deceased parent’s consent for visitation is established.

“In this Court’s opinion, such effect upon application of Code § 20-124.2(82) in this case does not withstand constitutional scrutiny.”

Mother’s liberty interest

“Despite consent the deceased father may have given for visitation of the children with the paternal grandparents during his lifetime, it is mother, as the fit and surviving parent of the children, who is solely vested with the fundamental liberty interest of a parent in raising her children, as established under the Due Process Cause of the Fourteenth Amendment and reaffirmed in Williams and Troxel  [Troxel v. Grandville, 530 U.S. 57 (2000)].

“To the extent any doubt remained, Griffin [Griffin v. Griffin, 41 Va. App. 77 (2003)], in applying this authority, made clear that such a fit and widowed mother indeed possesses ‘[t]he liberty interest at issue in this case — the interest of [a mother] in the care, custody, and control of [her] children.’ …

“The shared fundamental liberty interest of mother and father in the care, custody, and control of their children, in short, ended with father’s death, leaving mother in possession of it.

“This Court cannot then conclude that father’s death gave rise to a compelling state interest in diminishing this fit mother’s subject liberty interest based posthumously upon what may have been father’s preference with whom his children would associate (the children’s associations being only one of a host of matters mother must confront in raising them and upon which she has the right to decide, despite the fact father may have had different preferences).

“To sustain a contrary position would be offensive to the Due Process Clause under the teachings of Troxel [“[T]he Constitution permits a state ‘to interfere with the right of parents to rear their children only to prevent harm or potential harm to a child[.]’], Williams and Griffin.

“Therefore, in the adjudication of the petitions of nonparents — grandparents in this case — seeking court-ordered visitation with this mother’s children pursuant to Code § 20-124.2, a predicate showing of actual harm to the children without the visitation must be the appliable evidentiary standard.

“Subsection (2B) of the statute fails to incorporate that standard, thus rendering the provision unconstitutional as applied in this case.”

Conclusion

“[T]he Court grants mother’s motion to strike grandparents’ evidence and dismisses their appeal after concluding the statutory provision upon which their petitions are based, Code § 20-124.2(82), is unconstitutional as applied in this case.”

In re: Williams, et al. v. Panter, Case Nos.: CJ18CHA62-00 through CJI8CHA73-00, Sept. 6, 2023. In the Washington County Circuit Court (Rowlett). Catherine D. O’Brien, Patricia E. Smith for the parties. VLW 023-8-060, 11 pp.