Griffin v. Griffin

COURT OF APPEALS OF VIRGINIA

Present: Judges Felton, Kelsey and Senior Judge Willis
Argued at Richmond, Virginia

ANDREA K. GRIFFIN
OPINION BY
v. Record No. 1214-02-2 JUDGE D. ARTHUR KELSEY
JUNE 17, 2003
ELBERT EDDIE GRIFFIN

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Paul M. Peatross, Jr., Judge

Steven L. Raynor (Christopher A. Jones; Martin &
Raynor, P.C., on briefs), for appellant.

Christopher J. Smith (Jones & Green, LLP, on
brief), for appellee.

Andrea Griffin appeals a decision of the trial court granting

her estranged husband weekly visitation with her son —— a child

fathered by another man while the Griffins were separated. On

appeal, she argues that (i) the trial court incorrectly applied

the legal standard governing visitation with a non-parent, and

(ii) under a correct application of the standard, the evidence

does not justify awarding visitation over her parental objection.

Agreeing with both contentions, we reverse the trial court's

visitation order.

I.

Andrea Griffin (wife) and Elbert Griffin (husband) married in

1996 and separated in September 1997. During the separation, wife

became sexually involved with Michael Groh. Wife continued,
however, to have sexual relations with husband during this period

of separation. In October 1997, wife learned that she was

pregnant and informed husband that he was the father. In December

1997, husband was injured in an automobile accident and spent six

to seven weeks in the hospital. Upon husband's discharge from the

hospital, wife returned to the marital home to care for him.

Husband suffered extensive injuries, leaving him with significant

physical and mental impairments. During this period of

recuperation, however, the couple did not reconcile or express any

joint interest in saving the marriage.

Wife gave birth to a boy on June 25, 1998. Husband believed

at that time, based on what wife had told him, that he was the

child's father. As a result, husband treated the child as his own

and participated in his early development. In September 1999,

wife and her son moved in with her mother. Wife agreed to allow

husband weekly visitation with the child. In December 1999,

however, a court-ordered paternity test established that Michael

Groh was the child's father. Upon learning the results of the

paternity test, wife denied husband any further weekly visitation

with her son.

In August 2000, over wife's objection, the juvenile and

domestic relations district court awarded husband temporary

visitation rights with the child despite the results of the

paternity test. In June 2001, the JDR court expanded the

visitation schedule and made its order final. The final order

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stated that the JDR court applied the best-interests test codified

in Code § 20-124.3. Wife appealed to the circuit court on the

ground that, as a non-parent, husband could not obtain visitation

rights over her son on a mere showing of best interests. In

February 2002, the circuit court held a hearing concerning the

visitation issue. The child's biological father, Michael Groh,

appeared and testified that he paid child support, but did not

intend to foster a relationship with the child.

Wife called Dr. Patricia Martin, a clinical psychologist, as

an expert witness. Dr. Martin testified that the best interests

of the child would be served by ending hubsand's visitation.

Dr. Martin concluded that, given the animosity between them, wife

and husband were not "able to co-parent effectively." Dr. Martin

noted wife's legitimate concerns over her son's "safety" when he

was with husband as well as husband's "history of drinking." In

addition, Dr. Martin testified, husband's psychological tests

revealed "dysfunctional personality characteristics." Husband

engaged in chronic disparagement of wife in her son's presence and

displayed an attitude of "revenge" stemming from a sense of

betrayal by wife.

The child was "obviously aware" of the hostility between

husband and wife, Dr. Martin observed. She explained that this

level of antagonism, even between parents, was cause for alarm:

One of the most significant findings in
family research concerns the serious hazard
posed to the psychological health and

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 develop[ment] of children by continued
exposure to high conflict between the
parents, whether in the contexts of an intact
marriage or as part of ongoing post-divorce
antagonism.

It only compounded things, Dr. Martin concluded, for such

hostility to exist between a mother and a non-parent seeking to

play the role of a de facto father.

Husband called Wendy Carroll, a family counselor, as an

expert witness. Carroll testified that she thought it would be

"very hard" on the child if visitation with husband did not

continue. The child referred to husband as "Daddy," Carroll

pointed out, and had obvious affection for him. Carroll also

found it significant that "Mr. Griffin vehemently and consistently

state[s] that he views himself as [the child's] father."

Although she did not apply any "formal criteria," Carroll

concluded that under "attachment theory" the child had developed

an emotional tie to husband. Severing that tie, Carroll believed,

would likely cause the child to consider himself "bad" and

"unlovable" and to grieve over the loss. As a result, Carroll

opined, it "could be" emotionally hurtful for the child if

visitation ended. All in all, Carroll concluded, it would be in

the child's best interests for husband to have visitation rights. 1

1
Wife also contends that the trial court erred by admitting
the testimony of Wendy Carroll because she was unqualified to
address the psychological aspects of "attachment theory" and that,
in any event, the topic was an improper subject for expert opinion
in the first place. Our reasoning assumes, without deciding, that
Carroll's testimony was admissible.

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 The trial court ruled for husband, stating that the "best

interests" of the child would be served by ordering visitation

over the mother's objection and that not doing so would be

"detrimental" to the child. The court advised husband to read

Wednesdays And Every Other Weekend, a book "which talks about

non-custodial parents and what's best for the child." The court's

final order required wife to make the child available for

visitation by husband on Wednesday afternoons and every other

weekend (from Friday night until Sunday evening). The order also

provided that husband "shall not consume alcoholic beverages while

the child is in his care."

Wife filed this appeal, seeking a reversal of the visitation

order. Before oral argument, wife filed a motion to remand the

case to the trial court alleging that on March 30, 2003, husband

had been in another automobile accident —— this time with her son

as a passenger. Police officers arrested husband for driving

under the influence and endangering the child's life. By order

entered April 15, 2003, we denied wife's request for a plenary

remand of the case, but nonetheless granted leave for her to seek

from the trial court either a reconsideration or stay of the

visitation order based upon changed circumstances. In the

meantime, we ordered this appeal to go forward.

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 II.

As the United States Supreme Court has observed, the "liberty

interest at issue in this case —— the interest of parents in the

care, custody, and control of their children —— is perhaps the

oldest of the fundamental liberty interests recognized by this

Court." Troxel v. Granville, 530 U.S. 57, 65 (2000). The Due

Process Clause protects the "fundamental right of parents to

make decisions concerning the care, custody, and control of

their children." Id. at 66. As a result, the statutory

best-interests test "unconstitutionally infringes on that

fundamental parental right" if it authorizes a court to

"disregard and overturn any decision by a fit custodial parent

concerning visitation whenever a third party affected by the

decision files a visitation petition, based solely on the

judge's determination of the child's best interests." Id. at

67.

Troxel expressly declined to rule that all "nonparental

visitation statutes violate the Due Process Clause as a per se

matter." Id. at 73. Citing Williams v. Williams, 256 Va. 19,

501 S.E.2d 417 (1998), as an example, Troxel pointed out that

some state statutes have been interpreted to require a showing

of actual harm as a precondition to awarding visitation to a

non-parent over the objection of fit parents. Id. at 74. In

Williams, the Virginia Supreme Court agreed that

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 [f]or 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.

Williams, 256 Va. at 22, 501 S.E.2d at 418 (quoting Williams v.

Williams, 24 Va. App. 778, 784-85, 485 S.E.2d 651, 654 (1997))

(emphasis added). Thus, when fit parents object to non-parental

visitation, a trial court should apply "the 'best interests'

standard in determining visitation only after it finds harm if

visitation is not ordered." Id. (emphasis added).

Custody and visitation disputes between two fit parents

involve one parent's fundamental right pitted against the other

parent's fundamental right. The discretion afforded trial courts

under the best-interests test, Code § 20-124.3, reflects a finely

balanced judicial response to this parental deadlock. A very

different kind of legal contest, however, exists in a dispute

between a fit parent and a non-parent. In this latter situation,

the best-interests test should be applied only if the trial court

first finds "an actual harm to the child's health or welfare

without such visitation." Id. (quoting Williams, 24 Va. App. at

784-85, 485 S.E.2d at 654).

We disagree with husband that our reasoning conflicts with

Dotson v. Hylton, 29 Va. App. 635, 639, 513 S.E.2d 901, 903

(1999), which held: "When only one parent objects to a

[non-parent's] visitation and the other parent requests it, the

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trial court is not required to follow the standard enumerated in

Williams." Unlike Dotson, the "other parent" in our case

(Michael Groh) did not request that visitation be awarded to

husband. Thus, the trial court was not asked to referee between

one parent's request that visitation be granted to a non-parent

and the other parent's objection to it. The only contest here is

between a parent and a non-parent.

We are equally unpersuaded by husband's suggestion that wife

has no constitutionally protected rights as a parent because she

and the child's father cannot be considered an "intact family."2

Troxel involved an unmarried, single mother. Nothing in Troxel

implies that the legal superiority of a fit parent's rights over

those of a non-parent turns on whether the parent is married,

separated, divorced, or widowed. A single mother has no less

constitutional right to parent her son than a married mother.

"We, therefore, reject any argument that single parents are

entitled to less constitutional liberty in decisions concerning

the care, custody, and control of their children." Wickham v.

Byrne, 769 N.E.2d 1, 6 (Ill. 2002).

2
In Dotson, 29 Va. App. at 638, 513 S.E.2d at 903, we
distinguished the situation in that case (a divorced couple with
one parent requesting visitation, the other objecting to it)
from Williams, which involved a "unified family" with both
parents objecting to non-parent visitation. Dotson did not
hold, as husband appears to contend, that the actual-harm
standard applies only to married parents in an intact family.

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 Because it exists as a means of expressing the compelling

state interests necessary to overcome the constitutional parental

rights recognized in Troxel, the actual-harm standard must be

understood as conceptually different from, and significantly

weightier than, the best-interests test. As we made clear in

Williams, the actual-harm test cannot be satisfied by a showing

that "it would be 'better,' 'desirable,' or 'beneficial' for a

child" to have visitation with a non-parent. Williams, 24

Va. App. at 784, 501 S.E.2d at 654. "It is irrelevant, to this

constitutional analysis, that it might, in many instances be

'better' or 'desirable' for a child" to have visitation with a

non-parent. Brooks v. Parkerson, 454 S.E.2d 769, 773-74 (Ga.

1995). "For the state to delegate to the parents the authority

to raise the[ir] child as the parents see fit, except when the

state thinks another choice would be better, is to give the

parents no authority at all." Williams, 24 Va. App. at 784, 501

S.E.2d at 654 (citation omitted).

Absent a showing of actual harm to the child, the

constitutional liberty interests of fit parents "take precedence

over the 'best interests' of the child." Id. As a result, "a

court may not impose its subjective notions of 'best interests

of the child'" in derogation of parental rights protected by the

Constitution. Id. A "vague generalization about the positive

influence" of non-parent visitation cannot satisfy the

actual-harm requirement. In re Herbst, 971 P.2d 395, 396,

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398-99 (Okla. 1998). To be sure, in this context, forced

visitation "cannot be ordered absent compelling circumstances

which suggest something near unfitness of custodial parents."

Stacy v. Ross, 798 So. 2d 1275, 1280 (Miss. 2001).

In addition, Code § 20-124.2(B) requires a showing of "clear

and convincing evidence" before visitation may be awarded to a

non-parent. This erects a "more stringent standard" than a mere

"preponderance of the evidence." Congdon v. Congdon, 40

Va. App. 255, 263, 578 S.E.2d 833, 837 (2003). Clear and

convincing evidence involves "that measure or degree of proof

which will produce in the mind of the trier of facts a firm

belief or conviction as to the allegations sought to be

established." Id. (quoting Lanning v. Va. Dept. of Transp., 37

Va. App. 701, 707, 561 S.E.2d 33, 36 (2002) (citation omitted)).

In this case, the trial court collapsed the two legal

standards together —— not only in the decisionmaking sequence, but

in the substance of the decision as well. In effect, the trial

court's reasoning treated the actual-harm requirement as simply a

restatement of the best-interests test. To justify a finding of

actual harm under the clear and convincing burden of proof, the

evidence must establish more than the obvious observation that the

child would benefit from the continuing emotional attachment with

the non-parent. No doubt losing such a relationship would cause

some measure of sadness and a sense of loss which, in theory,

"could be" emotionally harmful. But that is not what we meant by

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"actual harm to the child's health or welfare." Williams, 24

Va. App. at 784-85, 485 S.E.2d at 654 (emphasis added). If it

were, any non-parent who has developed an emotionally enduring

relationship with another's child would satisfy the actual-harm

requirement. The constitutional rights of parents cannot be so

easily undermined.

The evidence in this case, at its best, goes no further than

supporting the inference that the child would grieve the loss of

the emotional attachment he has for his mother's estranged husband

and "could be" emotionally hurt if visitation with him ended.

While that might satisfy a trial court's "subjective notions of

'best interest of the child,'" Williams, 24 Va. App. at 785, 501

S.E.2d at 654, it falls far short of satisfying by clear and

convincing evidence the actual-harm test. Wife's decision to

discourage her young son's relationship with husband, therefore,

must be judicially respected. 3

III.

In sum, we hold that the trial court applied an incorrect

legal standard to the non-parent visitation award and that, under

the correct standard, the evidence does not support a finding by

clear and convincing evidence of actual harm to the child's health

3
Given our holding, we need not address whether husband
qualifies as a "[p]erson with a legitimate interest" under Code
§ 20-124.1. Cf. Kogon v. Ulerick, 12 Va. App. 595, 405 S.E.2d
441 (1991) (defining "stepparent" for purposes of being deemed a
"party with a legitimate interest").

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or welfare. For this reason, we reverse and vacate the trial

court's visitation order. 4

Reversed and vacated.

4
We also deny husband's motion for attorney's fees.

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