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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