Williams v. Williams

Present: All the Justices

THOMAS O. WILLIAMS, III,
ET AL.
OPINION BY JUSTICE A. CHRISTIAN COMPTON
v. Record No. 971616 June 5, 1998

THOMAS O. WILLIAMS, IV, ET AL.

FROM THE COURT OF APPEALS OF VIRGINIA

This is a dispute between the parents of a child in an

intact family unit and the child's paternal grandparents over

the grandparents' right of visitation with the child.

Appellees Thomas O. Williams, IV, and Sarah Hasty Williams,

husband and wife who reside together, are the natural parents of

a daughter born on March 9, 1991. Appellants Thomas O.

Williams, III, and Frances S. Williams are the child's paternal

grandparents, who reside near the parents in Blacksburg.

The child's family is intact. There is no evidence of

parental abuse or neglect. The parents are respected members of

the community in which they live. They are mentally,

physically, and morally fit, and are capable of meeting their

daughter's financial, educational, moral, and social needs.

The parents and grandparents maintained regular contact

until February 1994 when the parents announced to the

grandparents, after consulting with a North Carolina

"counselor," that they were "detaching" or withdrawing from the

relationship which previously existed with the grandparents.
 Eventually, the grandparents filed a petition seeking

visitation with their granddaughter. The Montgomery County

Juvenile and Domestic Relations District Court and, on appeal,

the Circuit Court of Montgomery County ordered visitation.

The circuit court decided that the child would "benefit

from contact with her grandparents"; that such visitation would

not interfere with the child's health or emotional development;

that such visitation "is a minimal intrusion into the family

unit"; that the grandparents "obviously love" the child and

"have the ability to adequately care for her"; and that the

child's best interests would be served by having visitation with

her grandparents.

On appeal to the Court of Appeals, the parents asserted

that Code § 20-124.2(B), as it pertains to nonparent visitation,

interferes with their right to autonomy in child rearing and,

hence, violates the Fourteenth Amendment to the United States

Constitution. The statute permits grandparents, and others, to

seek visitation.

As pertinent here, the statute provides: "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."

Code § 20-124.1 provides that the term "person with a legitimate

2
interest" is to be "broadly construed and includes, but is not

limited to grandparents, stepparents, former stepparents, blood

relatives and family members."

The Court of Appeals held there is no constitutional

problem in the applicable statutes. In so ruling, the appellate

court concluded that the right of parents in raising their child

is a fundamental right protected by the Fourteenth Amendment.

Williams v. Williams, 24 Va. App. 778, 783, 485 S.E.2d 651, 654

(1997). The Court of Appeals further decided that state

interference with a fundamental right must be justified by a

compelling state interest, and that to constitute a compelling

interest, "state interference with a parent's right to raise his

or her child must be for the purpose of protecting the child's

health or welfare." Id.

The Court of Appeals then interpreted Code § 20-124.2(B) to

permit the state to interfere with the right of parents to raise

their child by allowing a court to order nonparent visitation

upon a showing by clear and convincing evidence that the best

interests of the child would be served by such visitation. Id.

at 784, 485 S.E.2d at 654. However, the Court of Appeals said

that the language in the foregoing statute that a court "shall

give due regard to the primacy of the parent-child

relationship," evinces the General Assembly's intent to require

the court to find that a denial of nonparent visitation would be

3
detrimental to the child's welfare before the court may

interfere with the constitutionally protected parental rights.

Id.

In other words, the Court of Appeals said, "For 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." Id. at 784-85, 485 S.E.2d at 654. A

court reaches consideration of the "best interests" standard in

determining visitation only after it finds harm if visitation is

not ordered. Id. at 785, 485 S.E.2d at 654.

The Court of Appeals held that the circuit court failed to

make the required finding of harm if visitation were denied,

reversed the circuit court, and remanded the case for

reconsideration of visitation in accord with the standard it set

forth. Id.

We agree with the Court of Appeals' discussion holding

there is no constitutional infirmity in the applicable statutes

and with that court's interpretation, as we have summarized it,

placed upon the statutes. We do not agree, however, that the

case should be remanded to the circuit court; a remand is

unnecessary. There is no allegation or proof that denial of

grandparent visitation would be detrimental to this child's

4
welfare, and no further consideration of that issue at this

stage of the proceeding is warranted.

Consequently, we will modify the Court of Appeals' judgment

to eliminate the requirement of a remand and will affirm the

judgment as modified. In so doing, we will deny the

grandparents' petition for visitation and will dismiss the

proceeding.

Modified, affirmed, and dismissed.

JUSTICE HASSELL, with whom JUSTICE KINSER joins, dissenting in
part and concurring in result.

I.

I dissent, in part, because I believe that Code § 20-

124.2(B), as applied in this proceeding, violates the Fourteenth

Amendment of the United States Constitution. I note that only

three members of this Court agree with the judgment of the Court

of Appeals as modified.

II.

Code § 20-124.2(A) states in part:

"In any case in which custody or visitation of
minor children is at issue, whether in a circuit or
district court, the court shall provide prompt
adjudication, upon due consideration of all the facts,
of custody and visitation arrangements, including
support and maintenance for the children, prior to
other considerations arising in the matter. . . . The
procedures for determining custody and visitation
arrangements shall insofar as practical, and

5
 consistent with the ends of justice, preserve the
dignity and resources of family members. . . ."

Code § 20-124.2(B), which is the subject of this appeal, states:

"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."

III.

A.

The grandparents initiated this proceeding by filing a

petition, pursuant to Code § 16.1-241(A)(3), in the Montgomery

County Juvenile and Domestic Relations District Court. The

grandparents requested that the court enter an order permitting

them to obtain visitation with their granddaughter. The parents

opposed the visitation petition.

The juvenile and domestic relations district court

conducted an ore tenus hearing and entered an order requiring

that the parents and grandparents participate in counseling "to

promote healing within the family and improved communication

. . . for the benefit of [the granddaughter], among others" and

6
directed the counselor to report to the court within 45 days.

The court also ordered that the "grandparents shall have

visitation every other Saturday from 10:00 a.m., until 6:00 p.m.

. . . and every other Thursday from 3:00 p.m., until 6:00 p.m."

Subsequently, the court conducted another ore tenus hearing and

entered a final order which granted the grandparents visitation

and required the parents and grandparents to participate in

joint family counseling through the court service unit of the

juvenile and domestic relations district court.

B.

The parents appealed the juvenile and domestic relations

district court's order to the circuit court. The parents filed

a motion to dismiss the grandparents' petition asserting, among

other things, that Code § 20-124.2(B) violates the parents'

constitutional rights, conferred by the Fourteenth Amendment of

the United States Constitution, to raise their child as they

deem appropriate.

The circuit court conducted an ore tenus hearing and found

that the granddaughter's "family is intact. [There is no]

evidence of parental abuse or neglect; [the parents] are

respectable members of their community; [the parents] are

mentally, physically, and morally fit; and [the parents] are

capable of meeting [the granddaughter's] financial, educational,

moral, and social needs."

7
 The circuit court also found that: "[t]he grandparents are

mentally, physically, and morally fit; [the grandparents] are

responsible, mature, and respected members of their community;

. . . [the granddaughter] will benefit from contact with her

grandparents, [who live] only one block apart [from her]; . . .

grandparent visitation will not interfere with [the

granddaughter's] health or emotional development; and . . .

[t]he grandparents obviously love [their granddaughter] and have

the ability to adequately care for her." The circuit court

rejected the parents' constitutional claim, and entered a final

judgment awarding the grandparents visitation with their

granddaughter for 10 hours per week.

C.

The parents appealed the judgment of the circuit court to

the Court of Appeals of Virginia and reasserted their

constitutional challenge. The Court of Appeals held that the

parents' autonomy in child rearing is a fundamental right

protected by the Fourteenth Amendment of the United States

Constitution and that state interference with that right must be

justified by a compelling state interest. The Court of Appeals

concluded that Code § 20-124.2(B) is constitutionally

permissible because the statute implicitly requires a finding

that a denial of visitation would be harmful or detrimental to

the grandchild. The Court of Appeals remanded the proceeding to

8
the circuit court so that it could make such findings. Williams

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

(1997). The grandparents appeal, and the parents assign cross-

error to the Court of Appeals' judgment.

IV.

This Court directed the litigants to brief the issue

whether the circuit court had subject matter jurisdiction to

award visitation to the grandparents even though custody of the

child is not at issue between the parents. The grandparents,

relying upon Code § 16.1-241, argue that the circuit court did

have subject matter jurisdiction to adjudicate this proceeding.

The parents respond that a court may consider visitation by non-

parents only in the context of a custody dispute which is

otherwise before the court. I disagree with the parents.

As the grandparents properly observe, they filed their

petition in the juvenile and domestic relations district court,

invoking that court's jurisdiction under Code § 16.1-241. This

statute states in relevant part:

"[E]ach juvenile and domestic relations district court
shall have . . . jurisdiction . . . over all cases,
matters and proceedings involving:

"A. The custody, visitation, support, control or
disposition of a child:

. . . .

"3. Whose custody, visitation or support is a
subject of controversy or requires determination. In

9
 such cases jurisdiction shall be concurrent with and
not exclusive of courts having equity jurisdiction,
except as provided in § 16.1-244;

. . . .

"The authority of the juvenile court to
adjudicate matters involving the custody, visitation,
support, control or disposition of a child shall not
be limited to the consideration of petitions filed by
a mother, father or legal guardian but shall include
petitions filed at any time by any party with a
legitimate interest therein. A party with a
legitimate interest shall be broadly construed and
shall include, but not be limited to, grandparents,
stepparents, former stepparents, blood relatives and
family members. . . ." Code § 16.1-241.

Code § 16.1-296, 1 in effect on the date that the parents

perfected their appeal from the juvenile and domestic relations

district court to the circuit court, stated in relevant part:

"A. From any final order or judgment of the
juvenile court affecting the rights or interests of
any person coming within its jurisdiction, an appeal
may be taken within ten days from the entry of a final
judgment, order or conviction. . . .

. . . .

"I. In all cases on appeal, the circuit court in
the disposition of such cases shall have all the
powers and authority granted by the chapter to the
juvenile and domestic relations district court."

Applying these statutes, I would hold that the juvenile and

domestic relations district court and the circuit court had

subject matter jurisdiction to adjudicate the issues raised in

this proceeding and that the grandparents have a statutory right

10
to file a petition seeking visitation privileges. Code § 16.1-

241(A) confers broad jurisdiction upon the juvenile and domestic

relations district courts to adjudicate visitation issues. Code

§ 16.1-241(B) grants the juvenile and domestic relations

district courts jurisdiction of petitions which require

visitation determinations. Indeed, the General Assembly

specifically mandated in Section (B) of this statute that the

authority of the juvenile court to adjudicate matters involving

visitation shall not be limited to consideration of petitions

filed by parents, but that any party with a legitimate interest,

including grandparents, may file such petitions. Code § 16.1-

296(A) permits a party to appeal any final order or judgment of

the juvenile court affecting the rights or interests of "any

person coming within" the juvenile court's jurisdiction to the

circuit court. And, Code § 16.1-296(I) grants the circuit court

the power and authority granted by Chapter 4.1 of Title 16.1 of

the Code to the juvenile and domestic relations district courts.

Furthermore, in West v. King, 220 Va. 754, 756-57, 263

S.E.2d 386, 387 (1980), we held that Code § 16.1-241, as it

existed in 1977, did not vest a juvenile court, and, hence, a

circuit court on appeal, with jurisdiction to order grandparent

visitation over the objection of a child's custodial parent.

1
Code § 16.1-296 was subsequently amended, but those
amendments do not affect the disposition of this appeal.

11
The General Assembly subsequently amended Code § 16.2-241,

specifically granting jurisdiction to the juvenile and domestic

relations district court to consider visitation petitions filed

by grandparents.

I observe that today, all seven members of this Court agree

that the juvenile and domestic relations district court and the

circuit court had jurisdiction to adjudicate the grandparents'

petition, and five justices agree that the grandparents have a

statutory right to file a petition seeking visitation

privileges. Only Justices Keenan and Koontz believe that the

grandparents have no statutory right to file a visitation

petition on the particular facts in this proceeding.

V.

A.

The grandparents argue that Code § 20-124.2(B) does not

contravene the Fourteenth Amendment of the United States

Constitution. The grandparents contend that, "although the

practical disagreement here is between parents and grandparents,

the real legal conflict is between the parents and the state.

The specific challenge is to balance . . . the state's interest

in protecting the granddaughter's constitutional rights under

the First Amendment of the United States Constitution to visit

her grandparents . . . and . . . the parents' constitutional

rights under the Fourteenth Amendment of the United States

12
Constitution to control [the granddaughter's] life."

Continuing, the grandparents assert that Code §§ 20-124.2 and

16.1-241 require that a court balance the interests of the state

and the interests of the parents; that the circuit court has

appropriately balanced the rights of all parties and found by

clear and convincing evidence that their granddaughter's best

interests would be served by requiring her to have limited

visitation with her grandparents; and that the challenged

statute is constitutional. Responding, the parents contend that

Code § 20-124.2(B), as applied to them, is unconstitutional

because the statute infringes upon their Fourteenth Amendment

rights to conduct their family affairs free from governmental

intrusion.

B.

The Fourteenth Amendment of the United States Constitution

provides in relevant part that "[n]o state shall . . . deprive

any person of life, liberty, or property, without due process of

law . . . ." U.S. Const. amend. XIV, § 1. The United States

Supreme Court, explaining the protections accorded by the

Fourteenth Amendment, has stated:

"While this Court has not attempted to define
with exactness the liberty thus guaranteed, the term
has received much consideration and some of the
included things have been definitely stated. Without
doubt, it denotes not merely freedom from bodily
restraint but also the right of the individual to
contract, to engage in any of the common occupations

13
 of life, to acquire useful knowledge, to marry,
establish a home and bring up children, to worship God
according to the dictates of his own conscience, and
generally to enjoy those privileges long recognized at
common law as essential to the orderly pursuit of
happiness by free men." Meyer v. Nebraska, 262 U.S.
390, 399 (1923).

The Supreme Court observed in Moore v. East Cleveland, 431

U.S. 494, 499 (1977), that it "has long recognized that freedom

of personal choice in matters of marriage and family life is one

of the liberties protected by the Due Process Clause of the

Fourteenth Amendment" (quoting Cleveland Bd. of Educ. v.

LaFleur, 414 U.S. 632, 639-40 (1974)). Additionally, the United

States Supreme Court has stated its "historical recognition that

freedom of personal choice in matters of family life is a

fundamental liberty interest protected by the Fourteenth

Amendment," Santosky v. Kramer, 455 U.S. 745, 753 (1982), and

that there is "a 'private realm of family life which the state

cannot enter.'" Moore, 431 U.S. at 499 (quoting Prince v.

Massachusetts, 321 U.S. 158, 166 (1944)). Accord Lassiter v.

Department of Soc. Servs., 452 U.S. 18, 27 (1981).

The Supreme Court of the United States has made clear that

a state may interfere with a parent's right to raise children

only when the state acts in its police power to protect the

health or safety of the child. See Wisconsin v. Yoder, 406 U.S.

205, 230 (1972) (Amish children would not be harmed by receiving

an Amish education instead of attending public high school);

14
Prince, 321 U.S. at 170 (Supreme Court approved conviction of a

guardian who allowed a child to sell religious magazines,

finding a legitimate state interest in preventing psychological

or physical injury to the child); Pierce v. Society of Sisters,

268 U.S. 510, 534 (1925) (parents' decisions to send their

children to private schools was not inherently harmful to

children).

Here, I am concerned with the parents' fundamental rights

to raise their child as they deem appropriate. Therefore, any

statute which seeks to limit those rights can only be justified

by a compelling state interest, and such statute must be

narrowly drawn to express only the legitimate state interest at

stake. Washington v. Glucksberg, ___ U.S. ___, ___, 117 S.Ct.

2258, 2268 (1997); Reno v. Flores, 507 U.S. 292, 301-02 (1993).

Thus, this Court must consider whether Code § 20-124.2(B), as

applied in this case, requires a finding of a compelling state

interest before a court can interfere with the parents'

fundamental rights to raise their child by awarding visitation

to the grandparents over the parents' objections.

VI.

A.

The language contained in Code § 20-124.2(B) is clear and

unambiguous and, therefore, I would look no further than the

plain meaning of the language contained in the statute to

15
ascertain its meaning. Supinger, 255 Va. at 205-206, 495 S.E.2d

at 817; City of Winchester v. American Woodmark Corp., 250 Va.

451, 457, 464 S.E.2d 148, 152 (1995). This Court has stated:

"'While in the construction of statutes the
constant endeavor of the courts is to ascertain and
give effect to the intention of the legislature, that
intention must be gathered from the words used, unless
a literal construction would involve a manifest
absurdity. Where the legislature has used words of a
plain and definite import the courts cannot put upon
them a construction which amounts to holding the
legislature did not mean what it has actually
expressed.'" Barr v. Town & Country Properties, Inc.,
240 Va. 292, 295, 396 S.E.2d 672, 674 (1990) (quoting
Watkins v. Hall, 161 Va. 924, 930, 172 S.E. 445, 447
(1934)); accord Supinger, 255 Va. at 206-07, 495
S.E.2d at 817-18; Haislip v. Southern Heritage Ins.
Co., 254 Va. 265, 268-69, 492 S.E.2d 135, 137 (1997);
Abbott v. Willey, 253 Va. 88, 91, 479 S.E.2d 528, 530
(1997); Weinberg v. Given, 252 Va. 221, 225-26, 476
S.E.2d 502, 504 (1996).

B.

In making visitation determinations, a juvenile and

domestic relations district court must comply with the statutes

contained in Title 20, Chapter 6.1 of the Code, which is

entitled, "Custody and Visitation Arrangements for Minor

Children." 2 This chapter contains numerous statutes which relate

to custody and visitation. Code § 20-124.1, which is contained

in Chapter 6.1, makes clear that grandparents and certain other

2
If the judgment of the juvenile and domestic relations
district court is subsequently appealed to a circuit court,
which considers the request for visitation de novo, the circuit
court must also apply the statutes contained in this Chapter.

16
non-parents, are deemed to have a statutory interest in child

visitation. 3

Code § 20-124.2 is entitled "Court-Ordered Custody and

Visitation Arrangements." Code § 20-124.2(B) authorizes a court

to award visitation to a non-parent with a legitimate interest.

Code § 20-124.2(B) also establishes the standard that a court

must apply when making a visitation determination. The court's

determination must be based upon a showing by clear and

convincing evidence that the best interests of the child would

be served by an award of visitation.

Code § 20-124.3, which establishes the factors that the

court shall consider when applying the best interests of the

child standard, states in part:

"§ 20-124.3. Best interests of the child. -- In
determining best interests of a child for purposes of
determining . . . visitation arrangements . . . the
court shall consider the following:
"1. The age and physical and mental condition of
the child, giving due consideration to the child's
changing developmental needs;
"2. The age and physical and mental condition of
each parent;
"3. The relationship existing between each
parent and each child, giving due consideration to the
positive involvement with the child's life, the

3
Code § 20-124.1 states in relevant part: "'[p]erson 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."

17
 ability to accurately assess and meet the emotional,
intellectual and physical needs of the child;
"4. The needs of the child, giving due
consideration to other important relationships of the
child, including but not limited to siblings, peers
and extended family members;
"5. The role which each parent has played and
will play in the future, in the upbringing and care of
the child;
"6. The propensity of each parent to actively
support the child's contact and relationship with the
other parent, the relative willingness and
demonstrated ability of each parent to maintain a
close and continuing relationship with the child, and
the ability of each parent to cooperate in matters
affecting the child;
"7. The reasonable preference of the child, if
the court deems the child to be of reasonable
intelligence, understanding, age and experience to
express such a preference;
"8. Any history of family abuse as that term is
defined in § 16.1-228; and
"9. Such other factors as the court deems
necessary and proper to the determination."

None of the factors which a court must consider in Code

§§ 20-124.2 and -124.3 when determining visitation requires that

a court make a finding of any type of harm to a child's health

or safety. The standard, "best interests of the child," does

not require the state to exercise its police power to protect

the health or safety of a child. Rather, this comparative

standard requires a court to make determinations about what may

be most beneficial to a child. Undoubtedly, most children would

benefit by experiencing a close and loving relationship with

caring grandparents. And, such relationship may certainly be in

a child's best interests. However, I cannot conclude that the

18
absence of such relationship in this case would affect the

granddaughter's health or safety.

As the record demonstrates, Code § 20-124.2 permits a court

to intrude upon the parents' fundamental rights to raise their

child even though the circuit court made a factual finding that

the parents are mentally, physically and morally fit, that they

are capable of meeting the child's financial, educational, moral

and social needs, and there is no evidence of parental abuse or

neglect. The plain language of this statute permits the state

to infringe upon the parents' rights to raise their child by

authorizing a court to mandate, against the parents' wishes,

those persons with whom the child shall associate.

In essence, Code § 20-124.2, as applied in this proceeding,

permits the government to impose its views regarding how a child

should be raised upon a child's parents, even though such

decisions are parental choices protected by the parents'

fundamental rights emanating from the Fourteenth Amendment.

Code § 20-124.2, as applied here, is constitutionally deficient

because it does not require that a court, in awarding visitation

to the grandparents, make a determination that such visitation

is necessary to protect the safety or health of the child. 4

4
I am of the opinion that Code § 20-124.2(B) is
unconstitutional as applied as opposed to unconstitutional
facially because there may be factual circumstances when
application of the statute as written would be constitutionally

19
 C.

The Court of Appeals, and the plurality's opinion,

concluded that Code § 20-124.2(B) is constitutional because the

General Assembly purportedly intended that a circuit court make

a finding that "a denial of visitation would be harmful or

detrimental to the welfare of the child, before interfering with

the constitutionally protected parental rights of the child

involved." In reaching this conclusion, the Court of Appeals

and the plurality rely upon the following language in Code § 20-

124.2(B) which requires that a court "shall give due regard to

the primacy of the parent-child relationship" when making

visitation determinations. I disagree with the plurality

opinion and the Court of Appeals.

The plain language contained in Code § 20-124.2(B) is

devoid of any words which require a court to make a finding of

harm to a child before granting visitation rights to a

grandparent over a parent's objection. The statutory language

that a court "shall give due regard to the primacy of the

parent-child relationship" simply is not equivalent to the

constitutional requirement that a court make a finding of a

compelling state interest before interfering with a parent's

fundamental right to raise a child. Thus, the plurality opinion

permissible. For example, a court should apply the best
interest of the child standard in a visitation dispute between

20
amends Code § 20-124(B) by adding additional language to the

statute. I cannot infer a legislative intent that is not

evident in the clear and unambiguous language of Code § 20-

124.2(B) because to do so would permit the judicial branch of

government to usurp the prerogatives of the legislative branch

of government by rewriting a statute and, thus, giving that

statute a construction that was not manifested by the plain

language that the General Assembly chose to use.

VII.

For these reasons, I would hold that Code § 20-124.2(B) is

unconstitutional as applied because the statute permits the

Commonwealth to interfere with the parents' fundamental rights

to raise their child even though the statute does not require

the court to make a finding that the failure to award visitation

over the parents' objections would be detrimental to the health

or safety of the child. Accordingly, I would enter an order in

favor of the parents, declaring that Code § 20-124.2(B) is

unconstitutional as applied in this proceeding.

JUSTICE KOONTZ, with whom JUSTICE KEENAN joins, dissenting, and
concurring in result.

In my view, the dispositive issue in this case is whether

the juvenile and domestic relations district court, and

natural parents of a child.

21
thereafter the circuit court on appeal, had the statutory

authority to consider a petition by grandparents seeking court-

ordered visitation with their grandchild over the united

objections of the child’s parents. The record reflects that the

parents have an intact marriage, are capable of meeting the

child’s financial, educational, moral, and social needs, and

there is no allegation of parental abuse, neglect, or

abandonment. In my view, in this specific factual context the

pertinent statutory scheme for resolving child visitation

disputes does not provide a right to the grandparents to seek

visitation, and, accordingly, does not provide authority to the

courts to consider their petition. Thus, I would not reach the

constitutional issue presented in this appeal.

Initially, I would note that the statutory scheme for

resolving visitation suits invoked by this case applies with

equal force in the circuit court on appeal and in the juvenile

and domestic relations district court from which the appeal

arises. See Code § 20-124.2 (expressly applicable to visitation

suits whether in the circuit court or the district court); Code

§ 16.1-296(I)(on appeal, circuit court has all powers and

authority granted to juvenile and domestic relations district

court). Because the petition in this case was originally filed

in the juvenile and domestic relations district court, I begin

my analysis with consideration of Code § 16.1-241, which

22
provides the general jurisdiction for that court. In pertinent

part, this statute provides that:

[E]ach juvenile and domestic relations district court
shall have . . . exclusive original jurisdiction . . .
over all cases, matters and proceedings involving:

A. The custody, visitation, support, control or
disposition of a child:

1. Who is alleged to be abused [or] neglected
. . .;

2. Who is abandoned by his parent or other
custodian or who . . . is without parental care and
guardianship;

2a. Who is at risk of being abused or neglected
by a parent or custodian . . .;

3. Whose custody, visitation or support is a
subject of controversy or requires determination;

. . . .

The authority of the juvenile court to adjudicate
matters involving the custody, visitation, support,
control or disposition of a child shall not be limited
to the consideration of petitions filed by the mother,
father or legal guardian but shall include petitions
filed at any time by any party with a legitimate
interest therein. A party with a legitimate interest
shall be broadly construed and shall include, but not
be limited to, grandparents, stepparents, former
stepparents, blood relatives and family members.

(Emphasis added.)

Code § 16.1-278.15 provides the dispositional authority of

the juvenile and domestic relations district court in visitation

suits in which that court has jurisdiction under Code § 16.1-

241. In pertinent part, Code § 16.1-278.15 provides in

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subsection (A) that in cases involving the visitation of a child

pursuant to Code § 16.1-241(A)(3), “the court may make any order

of disposition to protect the welfare of the child and family as

may be made by the circuit court.” Subsection (B) further

provides that in “any case involving the custody or visitation

of a child, the court may award custody upon petition to any

party with a legitimate interest therein, including . . .

grandparents.”

In express terms, Code § 16.1-241 provides a broad

legislative grant of jurisdiction for the juvenile and domestic

relations district court to consider visitation matters, and

Code § 16.1-278.15 provides the dispositional authority for that

court to award visitation to any party with a legitimate

interest, including a grandparent. However, these code sections

do not create any right in the grandparents, or in any other

“party with a legitimate interest” to visitation. Such rights

did not exist at common law, West v. King, 220 Va. 754, 756, 263

S.E.2d 386, 387 (1980), nor can they be acquired inferentially.

Cf. Johnson v. Johnson, 224 Va. 641, 645, 299 S.E.2d 351, 353

(1983). Rather, being in derogation of the common law, the

right of the grandparents, or any other party with a legitimate

interest, to visitation of a child over the united objections of

two fit parents must be conferred expressly by statute. Cf.

Wackwitz v. Roy, 244 Va. 60, 65, 418 S.E.2d 861, 864 (1992).

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 To the extent that the grandparents, as parties with a

legitimate interest, have a right to visitation, such right is

granted by Code § 20-124.2 which expressly addresses “[c]ourt-

ordered custody and visitation arrangements.” Code § 20-

124.2(A) provides in pertinent part that:

In any case in which custody or visitation of
minor children is at issue, whether in a circuit or
district court, the court shall provide prompt
adjudication, upon due consideration of all the facts,
of custody and visitation arrangements, including
support and maintenance for the children, prior to
other considerations arising in the matter. The court
may enter an order pending the suit . . . .

Code § 20-124.2(B) provides in pertinent part that:

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.

Code § 20-124.1 provides that the term “‘Person with a

legitimate interest’ shall be broadly construed and includes,

but is not limited to grandparents . . . provided any such party

has intervened in the suit or is otherwise properly before the

court.” (Second emphasis added.)

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 The limiting phrase “provided any such party has intervened

in the suit or is otherwise properly before the court” in Code

§ 20-124.1 impacts the scope of both the provisions of Code

§ 20-124.2(B) and the provisions of Code § 16.1-241. This

phrase expressly limits the circumstances under which Code § 20-

124.2(B) grants the grandparents the right to visitation and,

thus, the circumstances under which Code § 16.1-241 provides

jurisdiction for the court to consider their petition for

visitation. Moreover, because the common law did not recognize

the right of a grandparent to visitation with a grandchild, this

statutory scheme must be strictly applied and not “enlarged in

[its] operation by construction beyond [its] express terms.”

C. & O. Railway v. Kinzer, 206 Va. 175, 181, 142 S.E.2d 514, 518

(1965); see also Bradick v. Grumman Data Systems Corporation,

254 Va. 156, 160, 486 S.W.2d 545, 547 (1997); Hyman v. Glover,

232 Va. 140, 143, 348 S.E.2d 269, 271 (1986) (General Assembly’s

intent to abrogate common law will be “plainly manifested” in

the language of a statute).

Here, the grandparents, as persons with a legitimate

interest, are not intervenors in an existing custody or

visitation suit between the parents, nor do they assert parental

unfitness, evidenced by abuse, neglect, or abandonment, so as to

qualify as parties otherwise properly before the court under

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Code § 16.1-241(A)(1), (2), and (2a). * Thus, only if Code § 20-

124.2(B) is construed without giving any effect to the limiting

language of Code § 20-124.1, would the court have had statutory

authority to award visitation to the grandparents under the

specific circumstances of this case, where two fit parents are

united in their objections to that visitation. However, the

limiting language of Code § 20-124.1 suggests that the

legislature intended to limit the right of grandparents, and

other parties with a legitimate interest, to seek visitation

only when that issue would otherwise be properly before the

court and not when the grandchild is in the custody of two fit,

natural parents in an intact marriage who are united in their

objections to visitation by the grandparents.

This conclusion is further bolstered by the language in

Code § 16.1-241(A)(3) that provides statutory authority to the

court over suits involving a child whose visitation “is a

subject of controversy or requires determination,” suggesting a

consistency with the language of Code § 20-124.1. I am aware of

no prior case in which we have recognized the broad and

unlimited right of visitation over parental objection asserted

*
It cannot be disputed that under the common law of this
Commonwealth grandparents can file a petition for custody of a
child upon an allegation of parental unfitness. See Bottoms v.
Bottoms, 249 Va. 410, 413-414, 457 S.E.2d 102, 104 (1995).

27
by the grandparents in this case, and I would decline to do so

now.

Accordingly, I would hold that the juvenile and domestic

relations district court had no statutory authority to grant

visitation to the grandparents under their petition because Code

§ 20-124.2(B) does not provide a right of visitation to the

grandparents under the circumstances in this case. For these

reasons, I would reverse the trial court’s judgment and dismiss

the grandparents’ petition.

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