COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Bumgardner
Argued at Salem, Virginia
KATHY JO DOTSON
OPINION BY
v. Record No. 1875-98-3 JUDGE RUDOLPH BUMGARDNER, III
MAY 4, 1999
JEFFERY S. HYLTON AND
JANICE HYLTON
FROM THE CIRCUIT COURT OF TAZEWELL COUNTY
Donald R. Mullins, Judge
Robert M. Galumbeck (Dudley, Galumbeck &
Necessary, on brief), for appellant.
Robert B. Altizer (Gillespie, Hart, Altizer &
Whitesell, on brief), for appellees.
Kathy Jo Dotson appeals a decision that awarded visitation
to the paternal grandmother of her daughter. She argues that
the trial court erred in granting the visitation because she had
sole custody and objected to it. Concluding that the trial
court did not err, we affirm its decision.
Dotson maintains the trial court erred because it decreed
visitation for the grandmother without finding that denying
visitation was detrimental to the child. She further asserts
that the trial court erred by merely substituting visitation
with the grandmother for visitation with the father. Finally,
she argues that if the trial court applied the correct standard,
it abused its discretion and ruled contrary to the law because
the evidence was not sufficient to support a finding that
visitation was in the best interests of the child.
Dotson and Jeffery S. Hylton were divorced in November 1995
when their daughter was four years old. Upon decreeing divorce,
the court also decreed joint legal custody with physical custody
to the mother and granted reasonable visitation to the father.
On March 5, 1998, the father was sentenced to ten years in the
penitentiary. As soon as he was sentenced, the mother moved for
sole custody. The father did not object to her obtaining full
custody, but he requested reasonable visitation while he
remained in the local jail as well as continued contact with his
daughter through letters and telephone calls. He requested
visitation for his mother. Dotson objected to visitation during
his incarceration or by the grandmother. The trial court
permitted the grandmother to intervene and petition for
visitation.
After an ore tenus hearing, the trial court granted the
mother sole custody of the child. It specifically found that
denial of visitation with the father and grandmother would not
be in the best interests of the child. The trial court
permitted the father visitation outside the jail and by letters
and telephone calls after transfer to the penitentiary. It
granted the grandmother visitation one Saturday per month,
finding by clear and convincing evidence it was in the best
interests of the child.
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The mother argues that under Williams v. Williams, 256 Va.
19, 501 S.E.2d 417 (1998), the trial court cannot interfere with
her constitutional right to raise her daughter unless the state
has a compelling interest. A detriment to the child’s welfare
would constitute a compelling interest, but the state cannot
intervene unless a detriment exists. Accordingly, she concludes
that the trial court could award visitation to the grandmother
only after finding that a detriment would arise if visitation
was denied. Only after first finding that a detriment would
arise, could the trial court determine whether the visitation
was in the best interests of the child.
This case is not controlled by Williams, 256 Va. 19, 501
S.E.2d 417. In Williams, both parents objected to visitation by
the grandparents, and the family was intact. Under those facts,
the Supreme Court held the state was required to have a
compelling interest before interfering with parental rights. To
grant visitation to the grandparents, over both parents’
objection, the trial court had to find that withholding
visitation would be detrimental to the child before it applied
the best interests standard. The Court stressed that “[t]he
child’s family is intact.” Id. at 20, 501 S.E.2d at 417. The
factual predicate in Williams was a unified family.
When only one parent objects to a grandparent’s visitation
and the other parent requests it, the trial court is not
required to follow the standard enumerated in Williams. In this
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case, the trial court had been determining custody and
visitation based on the child’s best interests since the divorce
three years earlier. The factual foundation for the Williams
decision did not exist. The family was not intact, and only one
parent objected to visitation. The trial court properly
distinguished the Williams case.
The mother and the father were before the court on a
custody and visitation dispute, so the grandmother’s petition to
intervene was proper. Grandparents are parties with a
“legitimate interest” 1 and may be awarded visitation as provided
1
§ 20-124.1. "Person 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. A party with a
legitimate interest shall not include any
person (i) whose parental rights have been
terminated by court order, either
voluntarily or involuntarily, or any other
person whose interest in the child derives
from or through such person whose parental
rights have been so terminated, including
but not limited to grandparents,
stepparents, former stepparents, blood
relatives and family members, if the child
subsequently has been legally adopted except
where a final order of adoption is entered
pursuant to § 63.1-231 or (ii) who has been
convicted of a violation of subsection A of
§ 18.2-61 or subsection B of § 18.2-366 when
the child who is the subject of the petition
was conceived as a result of such violation.
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by Code § 20-124.2. 2 The parent-child relationship has primacy,
but the trial court may award visitation to a grandparent upon a
showing, by clear and convincing evidence, that the best
interests of the child would be served. The statutory standard
controls this case because Williams does not.
The trial court heard the evidence ore tenus, and its
decision “is entitled to great weight and will not be disturbed
unless plainly wrong or without evidence to support it.”
Venable v. Venable, 2 Va. App. 178, 189, 342 S.E.2d 646, 651
(1985). The prevailing party in the trial court is entitled to
have the evidence viewed in the light most favorable to it. See
Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795
(1990).
2
§ 20-124.2. Court-ordered custody and
visitation arrangements. - . . . B. 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.
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When the couple was married, they lived with the
grandmother, and the child spent substantial time with her.
After the separation, the child continued to spend time with her
grandmother during her father’s visitation. The grandmother
lived in a three-bedroom house with her adult son and daughter.
The child was familiar with the father’s extended family, and
there was no evidence of abuse or that the grandmother’s home
was unfit. The mother admitted that the grandmother was
mentally, physically and morally fit and able to care for the
child. The father had visitation before he was jailed, and the
court felt it should continue when he was not in the jail.
The trial court considered the statutory factors set forth
in Code § 20-124.3 when deciding that visitation was in the
child’s best interests. The evidence was sufficient to prove by
clear and convincing evidence that visitation by the grandmother
was in the best interests of the child. The grandmother was a
legitimate party in interest and properly before the court as an
intervenor. Her visitation privileges were independent of the
father’s right to visit his daughter though they coincided with
his wishes. See Code § 20-124.1.
Concluding that the trial court did not err, we affirm.
Affirmed.
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