Williams v. Williams

                   COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Coleman and Willis
Argued at Salem, Virginia


THOMAS O. WILLIAMS, IV
AND
SARAH HASTY WILLIAMS
                                              OPINION BY
v.   Record No. 2260-96-3             CHIEF JUDGE NORMAN K. MOON
                                            JUNE 3, 1997
THOMAS O. WILLIAMS, III
AND
FRANCES S. WILLIAMS

           FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
                       Ray W. Grubbs, Judge

          Harriet D. Dorsey (Dorsey & Hartley, on
          brief), for appellants.

          H. Gregory Campbell, Jr., for appellees.



     Thomas O. Williams, IV and Sarah Hasty Williams appeal the

trial court's order granting Thomas O. Williams, III and

Frances S. Williams visitation with the appellants' daughter,

Leslie Williams.   Appellants assert that Code § 20-124.2(B), as

it pertains to non-parent visitation, violates the Fourteenth

Amendment to the United States Constitution.

     We hold that the parents' right to 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.

Accordingly, we further hold that the language of Code

§ 20-124.2(B) that "[t]he court shall give due regard to the

primacy of the parent-child relationship" requires proof that
harm or detriment to the welfare of the child would result

without visitation, before visitation may be ordered over the

united opposition of the child's parents.   Finding that the trial

court failed to determine if harm or detriment would result to

Leslie's health or welfare if visitation was not ordered, we

reverse and remand for reconsideration of visitation consistent

with the holdings of this opinion.

       Leslie Williams was born on March 9, 1991, and resides

with her biological parents in Blacksburg, Virginia, one block

from the home of appellees, her paternal grandparents.      The trial

court found that
          Leslie's family is intact. No evidence of
          paternal abuse or neglect; [appellants] are
          respectable members of their community;
          [appellants] are mentally, physically and
          morally fit; and [appellants] are capable of
          meeting Leslie's financial, educational,
          moral and social needs.


     The parties maintained regular familial contact until

February, 1994, when appellants, after consultation with a

counsellor in Waxall, North Carolina, announced that they were

"detaching" from their relationship with appellees.   Counseling

efforts were unsuccessful, and the grandparents ultimately filed

a petition seeking visitation with their granddaughter.

Visitation of ten hours per week was ordered.   The circuit court

held that
            [appellees] are mentally, physically, and
            morally fit; . . . [appellees] are
            responsible, mature, and respected members of
            their community; . . . Leslie will benefit
            from contact with her grandparents, living
            only one block apart; . . . grandparent

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           visitation will not interfere with her health
           or emotional development; . . . grandparent
           visitation is a minimal intrusion into the
           family unit; . . . [appellees] obviously love
           Leslie and have the ability to adequately
           care for her; and . . . it is in Leslie's
           best interest to have visitations with her
           grandparents.

                            I.   The Statute


     There is no common law right of visitation for grandparents

in Virginia.   Kogon v. Ulerick, 12 Va. App. 595, 405 S.E.2d 441

(1991).   However, Code § 20-124.2(B) permits grandparents, and

others, to seek visitation according to the following standard:
          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 interests 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 "person with a legitimate interest"

is to be "broadly construed, and includes, but is not limited to

grandparents, stepparents, former stepparents, blood relatives

and family members."

                II.    Fourteenth Amendment Challenge

     The Fourteenth Amendment of the United States Constitution

provides that "[n]o state shall . . . deprive any person of life,

liberty or property, without due process of law . . . ."   U.S.

Const. amend. XIV, § 1.    In applying the protection of the

Fourteenth Amendment, the United States Supreme Court has held

that "[w]here certain fundamental rights are involved . . .

regulation limiting these rights may be justified only by a


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`compelling state interest' . . . and . . . legislative

enactments must be narrowly drawn to express only the legitimate

state interests at stake."   Roe v. Wade, 410 U.S. 113, 155 (1973)

(emphasis added).

                    A. The Protected Interest

     While the Constitution does not specifically mention

parental rights, the Constitution's guarantee of liberty has been

repeatedly interpreted as encompassing such a right:
          While this court has not attempted to define
          with exactness the liberty thus guaranteed
          [by the Fourteenth Amendment] . . . .
          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 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).    Similarly, the

Supreme Court in Santosky v. Kramer, 455 U.S. 745, 753 (1982),

noted its "historical recognition that freedom of personal choice

in matters of family life is a fundamental liberty interest

protected by the Fourteenth Amendment."

     In addition to recognizing as a fundamental liberty interest

the right of parents to raise their children, the Supreme Court

has also established that the Constitution's guarantee of

fundamental privacy rights also embodies a fundamental right to

parental autonomy in child rearing.    In Prince v. Massachusetts,

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321 U.S. 158, 166 (1944), the Court acknowledged a "private realm

of family life which the state cannot enter."     See also Moore v.

City of East Cleveland, 431 U.S. 494 (1977).

       Other jurisdictions, considering the constitutionality of

grandparent visitation statutes, have concluded that the right to

parental autonomy in child rearing constitutes a fundamental

liberty interest.    See Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993);

Brooks v. Parkerson, 454 S.E.2d 769 (Ga. 1995).    The Tennessee

Supreme Court, holding its grandparent visitation statute
                                                  1
unconstitutional under the Tennessee Constitution, held that
"parental rights constitute a fundamental liberty interest."

Hawk, 855 S.W.2d at 579.   Similarly, the Georgia Supreme Court,

noting that "[t]he United States Supreme Court has long

recognized a constitutionally protected interest of parents to

raise their children without undue state interference,"

determined that the rights of parents to raise their children

constituted a fundamental right.    Brooks, 454 S.E.2d at 771.

       In light of these considerations, we hold that the right of

the parents in raising their child is a fundamental right

protected by the Fourteenth Amendment.
   1
      Tennessee's grandparent visitation statute is markedly
similar to Virginia's visitation statute. The Tennessee statute
"allows a court to order `reasonable visitation' with grandparents
if it is `in the best interests of the minor child.'" Hawk, 855
S.W.2d at 577 (citation omitted). The Tennessee Supreme Court
found the statute unconstitutional under Article I, Section 8 of
the Tennessee Constitution, which is substantively identical to
the Fourteenth Amendment, as it provides that "no man shall be . .
. deprived of his life, liberty or property, but by the judgement
of his peers or the law of the land."


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                    B. Compelling State Interest

       State interference with a fundamental right must be

justified by a "compelling state interest."    Roe, 410 U.S. at

155.   The Supreme Court has clearly established 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.    See Wisconsin v.

Yoder, 406 U.S. 205, 230 (1972) (holding that Amish children

would not be harmed by receiving an Amish education instead of

attending public high school); Prince, 321 U.S. at 170
(permitting state prosecution of a parent who allowed her child

to sell religious magazines on the ground that the state's

interference was designed to prevent "psychological or physical

injury" to the child); Pierce v. Society of Sisters, 268 U.S.

510, 534 (1925) (holding the parents' decisions to send their

children to private schools was not inherently harmful to the

children); Meyer, 262 U.S. at 402-03 (providing that "proficiency

in a foreign language . . . is not injurious to the health,

morals or understanding of the ordinary child").

                 C. Constitutionality of Grandparent
                          Visitation Statute


       Code § 20-124.2(B) permits the state to interfere with the

right of parents to raise their children by allowing a court,

"upon a showing by clear and convincing evidence that the best

interests of the child would be served," to order non-parent

visitation.   However, Code § 20-124.2(B) specifically indicates

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that "[t]he court shall give due regard to the primacy of the

parent-child relationship."   We interpret this language to

evidence the legislature's intent that the court make the

necessary 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.

     We further hold that the requirement of Code § 20-124.2(B)

that "[t]he court shall give due regard to the primacy of the

parent-child relationship" renders insufficient a finding by a

court that it would be "better," "desirable," or "beneficial" for

a child to have visitation with his or her grandparents.     "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."    Hawk, 855 S.W.2d at 580.   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.

     The "best interests" standard is considered in determining

visitation only after a finding of harm if visitation is not
ordered.    Without a finding of harm to the child, a court may not

impose its subjective notions of "best interests of the child"

over the united objection of the child's parents without

violating the constitutional rights of those parents.      In this

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regard, the parents' constitutional rights take precedence over

the "best interests" of the child.

     Holding that Code § 20-124.2(B) requires a finding that harm

or detriment to a child's health or welfare would result without

visitation, before visitation can be ordered over the united

objection of the child's parents, and that the trial court failed

to make such a finding, we reverse and remand for reconsideration

of visitation in accord with this opinion.

                                                  Reversed.




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